Opinion
C.A. No. 97C-12-020
Submitted: September 4, 2001
Decided: December 27, 2001
Upon Consideration of Plaintiffs' Motion For a New Trial DENIED.
Fred Barakat, Esq., Chadds Ford, Pennsylvania. Attorney for Plaintiffs.
Mason E. Turner, Esq., Wilmington, Delaware. Attorney for Defendant Bayhealth and Hardy.
Anne L. Naczi, Esq., Georgetown, Delaware. Attorney for Defendant Ob-Gyn and Radnich.
ORDER
Upon consideration of the plaintiffs' motion for a new trial, the defendants' response, and the record of this case, it appears that:
1. This is a medical malpractice case in which the jury rendered a verdict in favor of the defendants. The plaintiffs have moved for a new trial, primarily on the grounds that defense counsel for Bayhealth Medical Center and Nancy Hardy, C.N.M., made improper statements in his closing argument. For the reasons which follow, I have concluded that none of the plaintiffs' contentions warrant a new trial and that the motion should be denied.
2. The case arises out of the birth of Timothy Malafronti on December 17, 1995. The child was born with serious birth defects including cerebral palsy. His delivery was a difficult one. The mother was in labor over two days. He died at age four. Nancy Hardy, a nurse mid-wife, was in charge of the delivery during the final hours when the alleged medical malpractice occurred. The plaintiffs' claim, supported by medical experts, was that the child's injuries were caused by oxygen deprivation which occurred during the final stage of labor. They contended that the baby's birth defects could have been avoided if Nurse Hardy had called in a doctor to take over the delivery. The defense, also supported by medical experts, was that the injuries were caused by a viral infection which was present in the fetus well before the delivery.
3. The plaintiffs contend that defense counsel made improper remarks in his closing argument. They contend that: (1) he made a highly prejudicial personal attack on one of the plaintiffs' experts by stating that the expert was "afraid to face the jury" because his testimony was "tainted" by a letter from plaintiffs' counsel; (2) that he improperly suggested to the jury that the same expert's testimony should be given less weight because it was given by deposition rather than live at trial; (3) and that defense counsel materially misstated the evidence, argued facts not in evidence, and gave his own personal opinions on causation. They also contend that a photographic blow-up of a slide of the placenta should not have been admitted into evidence and that plaintiffs' counsel was misled into acquiescing in its admission because of misrepresentations made by defense counsel.
4. With regard to comments of counsel in opening statements or closing arguments, the Delaware Supreme Court has stated that "[a]ny effort to mislead the jury or appeal to its bias or prejudice is inappropriate." In order to determine whether a new trial is called for in connection with improper comments, the trial court must consider whether the improper comments prejudicially affected substantial rights of the plaintiffs. In doing so, the court should consider: (1) the closeness of the case, (2) the centrality of the issue affected by the improper comments, and (3) the steps taken in mitigation.
DeAngelis v. Harrison, Del. Supr., 628 A.2d 77, 80 (1993).
Hughes v. State, Del. Supr., 437 A.2d 559, 571 (1981).
Id.
5. The plaintiffs' first contention is that defense counsel made a highly prejudicial personal attack on one of the plaintiffs' expert by stating that the expert was "afraid to face the jury" because his testimony was "tainted" by a letter from plaintiffs' counsel. A thorough review of the defense counsel's closing argument reveals that he did not make the remarks attributed to him. During cross examination of that witness, and again during closing argument, he did suggest to the jury that the expert's opinion changed after he received a certain letter from plaintiffs' counsel. I am satisfied that there was a basis in the evidence for this argument and that its proper weight and effect were matters properly before the jury.
In fairness to plaintiffs' counsel, he did not have a transcript of the argument when he filed his motion.
6. Plaintiffs' next contention is that defense counsel improperly stated that the jury should give less weight to their expert's testimony because it was given by video deposition rather than live in court. Early in his argument defense counsel did make this argument, which is improper. He repeated the argument at a later point, and plaintiffs' counsel objected. When the objection was made, the court did comment in response that the jury should consider the testimony the same as if the expert did appear, and defense counsel acknowledged the point. In addition, the jury was appropriately instructed at other stages of the proceeding that deposition testimony should be considered and weighed in the same way as the testimony of a witness testifying in court. I do not think that the comments complained of affected substantial rights of the plaintiffs.
7. Plaintiffs' next contention is that defense counsel materially misstated the evidence, argued facts not in evidence, and gave his own personal opinions on causation. This contention arises from three aspects of defense counsel's closing argument. The first is defense counsel's argument regarding the testimony of Drs. Perlman and Farb. The second is a comment counsel made to the effect that a caesarean section would have required thirty minutes of time after the necessary medical team was assembled to perform that procedure. The third is defense counsel's argument concerning evidence of hypoxia, or oxygen deprivation, during the period before actual delivery.
8. Dr. Perlman examined a specimen from the placenta and concluded that the fetus suffered from a viral infection well before delivery. She expressed the opinion that the viral infection caused the baby's brain damage. Dr. Farb examined the autopsy report which was prepared after the child died. He testified that there was significant white matter injury in the brain and that the presence of such matter was evidence of viral infection during pregnancy. He also testified that viral infection caused the brain injury. Plaintiffs argue that Dr. Perlman's testimony concerned the possible effect of the placenta condition at the time of bradycardia, or low heart rate, during the delivery, whereas Dr. Farb's testimony was that the viral infection directly caused the brain injury. He argues that defense counsel improperly harmonized the doctors' opinions by arguing that the virus caused placental insufficiency over a prolonged period of two weeks, up to the time of bradycardia. However, I have carefully reviewed the relevant portions of the testimony of Drs. Perlman and Farb and I find nothing improper about defense counsel's closing argument concerning their testimony.
9. Early in defense counsel's closing argument, while summarizing the plaintiffs' theory of the case, he outlined a time line of events which allegedly would have led to a successful, injury free delivery. In that outline, he referred to ". . . the few minutes to call for the C-section and then the thirty minutes to get it done . . ." Plaintiffs' contention that a C-section would have resulted in the baby being born sooner, before suffering brain damage, was obviously an important part of their case. However, I do not believe that the reference to "thirty minutes" prejudiced the plaintiffs case. The underlying point of counsel's argument was that delivering the child by C-section would itself have taken some period of time. The reference to thirty minutes for a C-section was not emphasized or presented as a time which was a part of any witness's specific testimony. Defense counsel made no further mention of "thirty minutes" and it was not a part of any argument that he made to the jury. I am not persuaded that the jury was in any way misled or influenced by counsel's comment.
10. Plaintiffs' next complain that defense counsel argued that evidence that the baby suffered hypoxia for forty-five minutes was irrelevant and directly contrary to evidence in the case. Defense counsel argued that, if oxygen deprivation were the cause of the child's brain injury, one might expect to see the fetal heart tracing become progressively lower, whereas the tracing showed points shortly before delivery where the heart beat was accelerating. Counsel's argument was a common sense evaluation of the evidence from the defense viewpoint. I find nothing objectionable in this part of counsel's closing
11. Finally, the plaintiffs' contend that a photographic blow-up of a slide of the placenta should not have been admitted into evidence and that plaintiffs' counsel was misled into acquiescing in its admission because of misrepresentations made by defense counsel. They argue that the blow-up was misleading because it showed only a portion of the slide, not the whole slide. The blow-up was used by Dr. Perlman in explaining her opinion that the placenta showed viral infection. I have considered plaintiffs' contention and I am satisfied that the blow-up was properly admitted into evidence. Plaintiffs' contention, at most, goes to the weight of that evidence.
THEREFORE, plaintiffs' motion for a new trial is denied.
IT IS SO ORDERED.