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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
PENNY JEAN MALAFRONTI                                                            )
DANIELS, JOSEPH DANIELS, and                                                     ) C.A. No. 97C-12-020
WANDA MALAFRONTI, all individually                                               )
and as Administrators of the Estate of  )
Timothy Ryan Malafronti, deceased,                                               )
)
Plaintiffs,                                                                      )
)
5.                                                                               )
                                                                                 )
BAYHEALTH MEDICAL CENTER, INC., )
f/k/a KENT GENERAL (incorporated),                                               )
a/k/a KENT GENERAL OB-GYN ASSOC-  )
IATES OF DOVER, P.A., ROBERT                                                     )
H. RADNICH, M.D., and NANCY                                                      )
HARDY, C.N.M.,                                                                   )
)
Defendants.                                                                      )
Submitted:    September 4, 2001
Decided: December 27, 2001
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.
Upon Consideration of Plaintiffs= Motion For a New Trial
DENIED
VAUGHN, Resident Judge




Malafronti et al. v. Bayhealth Medical, et al.
C.A. No.   97C-12-020
December 27, 2001
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 Aafraid to face the
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Malafronti et al. v. Bayhealth Medical, et al.
C.A. No.   97C-12-020
December 27, 2001
jury@ because his testimony was Atainted@ 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[a]ny effort to mislead the
jury or appeal to its bias or prejudice is inappropriate.@1  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
1                                                                                            DeAngelis v. Harrison, Del. Supr., 628 A.2d 77, 80 (1993).
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Malafronti et al. v. Bayhealth Medical, et al.
C.A. No.   97C-12-020
December 27, 2001
the plaintiffs.2  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.3
2                                                                                              Hughes v. State, Del. Supr., 437 A.2d 559, 571 (1981).
3                                                                                              Id.
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Malafronti et al. v. Bayhealth Medical, et al.
C.A. No.   97C-12-020
December 27, 2001
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 Aafraid to face the jury@ because his testimony was Atainted@ 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.4    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.
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
4                                                                                            In fairness to plaintiffs= counsel, he did not have a transcript of the argument when he
filed his motion.
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Malafronti et al. v. Bayhealth Medical, et al.
C.A. No.   97C-12-020
December 27, 2001
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
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Malafronti et al. v. Bayhealth Medical, et al.
C.A. No.   97C-12-020
December 27, 2001
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 A ... 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 Athirty 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 Athirty 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
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Malafronti et al. v. Bayhealth Medical, et al.
C.A. No.   97C-12-020
December 27, 2001
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.
Resident Judge
oc:    Prothonotary
cc:                                                                                         Order Distribution
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