Opinion
No. 96C-05-122-WTQ.
Submitted: March 27, 2000.
Decided: March 31, 2000.
Letter Opinion and Order on Plaintiffs' Motion for Reargument of Decision Conditionally Granting Defendant Beebe Medical Center's Motion for Summary Judgment —
Charles P. Brandt, Esquire Brandt Dalton, P.A. 919 Market Street, P.O. Box 2307, Wilmington, DE. 19899.
Anne L. Naczi, Esquire Griffin Hackett, P.A. 14 The Circle, P.O. Box 612, Georgetown, DE. 19470.
Mason E. Turner, Jr., Esquire Prickett, Jones Elliott 1310 King Street, P.O. Box 1328, Wilmington, DE. 19899.
REARGUMENT GRANTED for the Limited Purpose of Supplementing the Record; Defendant Beebe's Motion for Summary Judgment GRANTED ON CREDENTIALING.
Dear Counsel:
The Plaintiffs have moved for reargument on that portion of the Court's decision of February 23, 2000 which conditionally granted Beebe Medical Center's Motion for Summary Judgment on the credentialing issue.
The Plaintiffs argue that the Court in effect ruled on a Motion to Disqualify an expert when no such Motion was before the Court. The Plaintiffs then in effect proffer evidence they would have submitted if such a Motion had been pending.
Beebe's Motion for Summary Judgment, it seems to the Court, necessarily raised the inquiry of whether there was a genuine issue of fact on a question which requires expert testimony under 18 Del. C. § 6853 and 6854. The question also requires the Court to exercise gatekeeping reliability standards under Delaware Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, ___ U.S. ___, 119 S.Ct. 1167 (1999).
The Court did say: "Despite his claim of `extensive experience in credentialing,' [Dr. Levinson's] expertise appears to be the same as any medical doctor who has had hospital privileges and, on hospital credentialing, that is not enough to qualify him as an expert witness." Riggs National Bank, et al. v. Boyd, et al., Del. Super., C.A. No. 96C-05-122, Quillen, J. (Feb. 23, 2000) at 7. The Court concluded there was "no persuasive admissible evidence" available on the credentialing issue. Id. at 11, 12.
While it seems to the Court the focus on expertise was inherently required by the question presented, perhaps it can be argued the Court should have structured the decision process by presenting counsel with a threshold qualification question in traditional terms. I gather, if the Court had done so, the Plaintiffs would have expanded the record to include all those matters proffered in the Motion for Reargument.
Reargument on the record is therefore GRANTED for the limited purpose of permitting the tender on reargument of supplemental evidence and such proffer shall be considered as part of the evidence on Beebe's Motion for Summary Judgment. IT IS SO ORDERED. But nothing contained in the Motion for Reargument, and particularly paragraph 5 thereof, dictates a different conclusion than that previously reached. This Court has accepted Dr. Levinson as an expert on many occasions and appreciates his assistance as an expert witness. But his prominence in Gynecological Laparoscopy, his work in the case of Dr. Peter S. Huang, and even his 1972-1986 service on the Delaware Review Organization ("DELRO") do not qualify him as an expert on hospital credentialing and this Court would be lax in performing its gatekeeping function if it permitted such potential freewheeling, conclusory opinion testimony. Indeed, the affidavits filed in this case tend to reinforce the Court's prior conclusion, at least to this Judge's mind.
The Court has also had an opportunity to review the Beebe Medical Center Credentialing file concerning Willis S. Boyd, M.D., delivered to the Court by Mr. Turner on March 9, 2000, and, insofar as Beebe's Motion for Summary Judgment is concerned, the Court can eliminate the conditional nature of the ruling. Beebe's Motion for Summary
The Court has taken the liberty of replacing the fastener on the Credentialing File, having found the one provided beyond the Court's mechanical ability.
Judgment on the credentialing (including training) issue is GRANTED. IT IS SO ORDERED.
With regard to Beebe Medical Center's Credentialing file of Dr. Boyd, the Court would appreciate it if the affiant for Beebe would file, to the best of his knowledge and belief, a sealed answer to the following interrogatory asked by the Court:
In any of Dr. Willis S. Boyd's submissions in the Credentialing File previously submitted, in camera, has Dr. Boyd made or failed to make any statement or representation believed by the affiant not to be true or correct? If the answer is "yes," please: identify the statement or representation; state why it is believed not to be true or correct; and supply the page(s) on which the statement or representation appear as attachments to affiant's answer.
The Court does not request any independent investigation be conducted, but only that the affiant answer, after consulting with counsel, to the best of his present knowledge and belief, including any information that has come to light in the prior preparation of this case. If counsel has an objection to the question, it may be made in any written form deemed appropriate. The answer should be filed within twenty days (not later than April 20, 2000).
Sincerely, ____________________ William T. Quillen
WTQ/caj oc: Prothonotary