Opinion
C.A. No. 98C-06-003
Decided: November 9, 2000
Before this Court are the parties' motions concerning: (1) the lack of toxicology reports; (2) evidence of the survivability or life expectancy of Keith Welsh; and (3) the use of the word "overdose" by Dr. Wecht, Plaintiff's causation expert. In summary, Keith Welsh ("Welsh") arrived at the Delaware Medical Center on August 25, 1996 with severe back pain. Welsh, who was undergoing chemotherapy treatment for his leukemia which was in remission, did not survive this hospital visit and died on August 27, 1996. Plaintiffs, the parents of Welsh, allege medical negligence against the hospital and the medical staff that treated him in August 1996. The three issues will be addressed in the order noted above.
(1) The Lack of Toxicology Reports.
The dispute over the lack of toxicology reports is that during the autopsy of Keith Welsh's body no toxicology studies were done. Plaintiffs claim that under the facts and circumstances of this case, the toxicology reports might have buttressed their opinion or aided in ruling out possible causes of death. Cause of death was never determined and is still an issue in this case. Plaintiffs therefore claim that spoliation of evidence occurred because the toxicology tests were not performed and because the autopsy was performed by doctors associated with the Defendant's medical practice. Based on this alleged spoliation, Plaintiffs are requesting that the jury be instructed that an adverse inference may be drawn from the spoliation of the toxicology studies. While it is true that Delaware law recognizes both intentional and negligent spoliation of evidence, this is not dispositive of the matter. In order for the Court to give the inference instruction to the jury the Court must be convinced that spoliation occurred either intentionally or negligently. No evidence had been presented concerning intentional spoliation and the Court is not convinced that negligent spoliation occurred. In order to prove negligent spoliation of evidence, plaintiffs must show that the standard of care for an autopsy required that toxicology testing be done.
Burris v. Kay Bee Toy Stores, Del. Super., C.A. No. 96C-01-036, Witham, J. (Sept. 17, 1999) (Letter Op.).
This Court is not convinced that the standard of care for an autopsy was not met. More precisely, this Court does not find that the autopsy was negligently performed. Spoliation has a punitive and prophylactic purpose when existing evidence is altered, destroyed or lost; however, the spoliation doctrine is not a remedy every time a party's potential evidence is not present at the time of trial. At this time Plaintiffs' request that an inference instruction be given to the jury is denied. If during trial the Plaintiffs can demonstrate the standard of care for an autopsy and that this standard was breached, the Court will reconsider the appropriateness of an inference instruction.
Defendants' motion with regard to the lack of toxicology testing is a motion in limine to preclude any testimony or other evidence at trial concerning the lack of post mortem toxicology testing. Delaware Rules of Evidence 401 and 403 and 18 Del. C. § 6853 form the legal basis of Defendants' motion. The Court disagrees with Defendants that 18 Del. C. § 6853 is applicable to the fact that toxicology studies were not performed. It is clear that 18 Del. C. § 6853 mandates that no liability shall exist without expert medical testimony about the causation of the alleged personal injury or death. To apply this medical negligence standard to allegedly negligent autopsies would effectively bar any finding that an autopsy was negligently performed as it cannot be the cause of death or injury. This could not have been the result intended by the State Legislature in the Healthcare Negligence Act.
Defendants also claim that the lack of toxicology evidence is irrelevant under D.R.E. 401 and would unfairly prejudice them under D.R.E. 403. The evidentiary determinations in this case are complicated because the results of the toxicology test are unknown and what those results could have shown is disputed. The court must use its discretion when engaging in determinations of relevancy under D.R.E. 401 and unfair prejudice under D.R.E. 403. This Court finds that because cause of death is disputed in this matter and because it appears that the toxicology tests would have been helpful in making this determination the evidence is relevant. The jury will be able to hear the Plaintiffs make their arguments about the toxicology reports and lack thereof, and the Defendants will be able to rebut these arguments.
Mercedes-Benz of North America, Inc. v. Norman Gershman's Things to Wear, Del. Supr., 596 A.2d 1358, 1366 (1991).
(2) Evidence of Keith Welsh's Life Expectancy.
Plaintiffs have also filed a Motion in Limine to prevent the Defendants from introducing expert testimony as to Welsh's life expectancy. In this motion, Plaintiffs claim that life expectancy is irrelevant as the parents of Welsh are not seeking compensation for economic loss but for mental anguish as to the premature death of their son regardless of how long he would have lived beyond August 1996. Defendants claim that Delaware's Wrongful Death Statute, 10 Del. C. § 3724, requires the jury to "consider all the facts and circumstances" when fixing the amount of damages. In deciding whether or not considering "all the facts and circumstances" includes considering evidence of lifetime expectancy with regard to economic damages and emotional damages for mental anguish this court is faced with an issue of first impression in Delaware. In 10 Del. C. § 3724 the statute lists (1) to (5) in subsections under section (d) the types of damages for which the jury "shall consider all the facts and circumstances." It appears that the State Legislature in Delaware did not distinguish what evidence could be presented between establishing damages for financial losses and/or less tangible emotional losses. Therefore, this Court concludes that "all facts and circumstances" includes evidence of life expectancy when considering both economic and emotional damages in wrongful death cases. Plaintiffs' motion is denied and both parties may present life expectancy evidence to the jury.
10 Del. C. § 3724
d) In fixing the amount of damages to be awarded under this subchapter, the court or jury shall consider all the facts and circumstances and from them fix the award at such sum as will fairly compensate for the injury resulting from the death. In determining the amount of the award the court or jury may consider the following:
(1) Deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries that would have resulted from the continued life of the deceased;
(2) Loss of contributions for support;
(3) Loss of parental, marital and household services, including the reasonable cost of providing for the care of minor children;
(4) Reasonable funeral expenses not to exceed $2,000;
(5) Mental anguish resulting from such death to the surviving spouse and next-of-kin of such deceased person. However, when mental anguish is claimed as a measure of damages under this subchapter, such claim for mental anguish will be applicable only to the surviving spouse, children and persons to whom the deceased stood in loco parentis at the time of the injury which caused the death of the deceased, parents and persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased (if there is no surviving spouse, children or persons to whom the deceased stood in loco parentis), and siblings (if there is no surviving spouse, children, persons to whom the deceased stood in loco parentis at the time of the injury, parents or persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased).
(3) Dr. Wecht's use of the word "overdose."
Defendants' have also brought a Motion in Limine to prevent Dr. Cyril H. Wecht, Plaintiffs' expert, from stating that Welsh "overdosed" on morphine. According to the Defendants, the word "overdose" implicates standard of care issues and Dr. Wecht is only qualified as a causation expert, not a standard of care expert. Plaintiffs claim that "overdose" is a medical term that is appropriate for Dr. Wecht to use in describing his opinion about the cause of Welsh's death. "Overdose" is a medical term that means "a dose of a drug, especially a drug of abuse, sufficient to cause an acute reaction such as coma, mania hysteria, or even death." Further, in review of Welsh's medical records, the Defendant doctors used the word overdose to describe Welsh's condition on the first day Welsh spent in the hospital when the doctors had to revive him with Narcan because of morphine oversedation. Certainly, the doctors were not admitting to a breach of standard of care but were describing Welsh's medical condition at the time. Dr. Wecht testified in his deposition that he would not comment on standard of care, and Plaintiffs reiterated in Chambers that Dr. Wecht was a causation expert only. Any dispute concerning the doctor's use of the word "overdose" can be clarified through cross-examination. For all of these reasons, Defendants' motion in limine with regard to Dr. Wecht's use of the word "overdose" is denied.
Taber's Cyclopedic Medical Dictionay (Clayton L. Thomas ed., F.A. Davis Co. 16th ed. 1989).
IT IS SO ORDERED.