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IN THE SUPREME COURT OF THE STATE OF DELAWARE ELIZABETH SAMMONS, individually ) and as ADMINISTRATRIX of the ESTATE) of GAIL E. SAMMONS, Deceased, ) ) Plaintiffs Below, ) Appellants, ) ) v. ) ) DOCTORS FOR EMERGENCY ) SERVICES, P.A., EDWARD R. SOBEL, ) M.D., and FAMILY PRACTICE ) ASSOCIATES, ) ) Defendants Below, ) Appellees. )

No. 40, 2006 Court Below: Superior Court of the State of Delaware in and for New Castle County C.A. No. 03C-12-267

Submitted: September 13, 2006 Decided: December 4, 2006 Corrected: December 6, 2006 Before STEELE, Chief Justice, BERGER and RIDGELY, Justices. Upon appeal from the Superior Court. AFFIRMED in part, VACATED in part, and REMANDED in part. John C. Phillips, Jr., Joseph J. Farnan, III, Brian E. Farnan (argued), Phillips, Goldman & Spence, P.A., Wilmington, Delaware for appellants. Mason E. Turner, Jr. (argued), Prickett, Jones & Elliott, P.A., Wilmington, Delaware; Colleen D. Shields (argued), Elzufon, Austin, Reardon, Tarlov & Mondell, P.A., Wilmington, Delaware; for appellees.

STEELE, Chief Justice:

This is a medical malpractice action arising from Gail Sammons's death in which plaintiff-appellant, Elizabeth Sammons,1 appeals a jury verdict for the defendants-appellees, Doctors for Emergency Services, P.A., Edward R. Sobel, M.D., and Family Practice Associates.2 DFES, Dr. Sobel, and Family Practice Associates treated Gail from January 2, 2002, until her death on January 5, 2002. Sammons's trial strategy focused on the defendants' alleged failure to diagnose sepsis which allegedly caused Gail's death. Sammons's theory and found for the defendants. Sammons argues in this appeal that the trial judges' abuse of their respective discretion on several evidentiary issues caused the adverse result.3 A Superior Court jury rejected

The plaintiff-appellant is the mother of the deceased, Gail E. Sammons. When we use the name "Sammons," we refer to the plaintiff appellant. When we use "Gail," we refer to the deceased. The original defendants were Christiana Care Health Services, Inc. (a/k/a Christiana Healthcare Systems, Inc. a/k/a Wilmington Hospital and Medical Center of Delaware), St. Francis Hospital, Inc., Doctors for Emergency Services, P.A., Jamie E. Roques, M.D., Edward R. Sobel, D.O., Michael Baram, M.D., Ori Shokek, M.D., Amy Robinson, M.D., and Robert Rosenbaum, M.D. On March 12, 2004, Sammons filed a motion to amend her complaint to add Family Practice Associates, P.A. as a defendant, and the trial judge granted the motion. Sammons later settled with Christiana Care and St. Francis and dismissed her claims against Drs. Baram, Robinson, Roques, and Shokek. The remaining defendants are Doctors for Emergency Services, P.A., Edward R. Sobel, and Family Practice Associates.
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Because the original assigned trial judge who handled pretrial issues became involved in a lengthy bench trial, a different judge presided for trial. The previous judge ruled on the motion regarding the affidavit of merit and motions in limine but did not preside over the jury trial. We use "his" to identify the initially assigned judge and "her" to identify the judge who presided over the trial.

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First, Sammons argues that the trial judge abused his discretion by precluding Sammons's expert, Dr. Bridges, from offering an expert opinion on causation and failure to diagnose sepsis. Sammons identified Dr. Bridges as her expert in pretrial discovery but did not disclose that Dr. Bridges would be offered to opine on causation and failure to diagnose sepsis. Later, Dr. Bridges offered his heretofore undisclosed opinion on causation and sepsis during a pretrial deposition. DFES counsel did not attend that deposition but asserts that he would have done so had he been put on notice that Dr. Bridges would opine on cause of death and failure to diagnose sepsis. Because Sammons did not put opposing counsel on notice that Dr. Bridges would so opine at his deposition, the trial judge did not abuse his discretion when he precluded Dr. Bridges from testifying regarding causation and failure to diagnose sepsis at trial. Second, Sammons contends that the trial judge abused his discretion by permitting DFES to adopt Dr. Roques's designated expert, Dr. Zenilman, as their own, after Sammons dismissed Dr. Roques. Sammons complains that allowing Dr. Zenilman's opinion testimony at trial unfairly prejudiced her. Dr. Roques had disclosed Dr. Zenilman's opinion on July 15, 2005, well before the December 15, 2005 trial began. DFES timely notified Sammons that they would be using Dr. Zenilman as an expert after Dr. Roques was no longer a party to the case. Therefore, Sammons had ample notice of the nature and substance of Dr.

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Zenilman's opinions, and adequate notice that DFES would be calling him as their expert. Sammons has identified no unfair prejudice resulting from admitting Dr. Zenilman's testimony and, therefore, the trial judge did not abuse his discretion when he allowed DFES to present Dr. Zenilman's expert medical testimony. Third, Sammons contends that the trial judge abused her discretion by permitting DFES's counsel to discuss Sammons's settlement with Christiana Care for the purpose of shifting liability to the settling defendant during his opening and closing statements. We hold that the trial judge did not abuse her discretion because DFES's counsel did not directly discuss any settlement amount, or the reason for settlement, but merely mentioned settlement to help the jury understand the alignment of the parties and to determine pro rata fault, if necessary. Fourth, Sammons argues that the trial judge abused her discretion when she refused to admit Gail's photograph. We hold that the trial judge acted within her discretion because the photograph was neither necessary to identify Gail nor was it relevant to any disputed issue in the case. Fifth, Sammons argues that the trial judge abused her discretion by precluding Sammons from impeaching a DFES expert by crossexamining him on DFES's 2004 sepsis policy. Sammons did not establish at trial that this policy reflected the applicable standard of care at the time that defendants cared for Gail in 2002. Therefore, the trial judge properly concluded that a failure to follow the

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policy would not be relevant to contradict the expert witness's opinion on the standard of care applicable in 2002. Sixth, Sammons argues that the trial judge abused her discretion by precluding Sammons's expert, Dr. Haines, from explaining his unavailability at trial during his videotaped testimony. We hold that the trial judge was within her discretion to give the jury a general instruction on witness unavailability rather than tell the jury the specific reason why the witness was unavailable. Seventh, Sammons contends that the trial judge erred by permitting the father of an attorney associated with the law firm representing Dr. Roques to sit as a juror in the case. Dr. Roques was not a party at the time of jury selection, and there was no evidence that the juror had any knowledge about the case or his son's firm's former involvement. Therefore, the trial judge properly acted within her discretion when she permitted the attorney's father to sit as a juror. Eighth, Sammons contends that the trial judge abused her discretion by giving the jury a curative instruction regarding Sammons's counsel's statements during closing rebuttal argument. After consideration of the record, we hold that the trial judge did not abuse her discretion because the trial judge's statements did not unfairly deny her a fair trial. Ninth, Sammons contends that the trial judge abused her discretion by refusing to give her proffered instruction on cross claims and by improperly

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addressing the jury's questions. We hold that the trial judge adequately instructed the jury regarding the cross claims without providing them with confusing and unnecessary information that would have made it more difficult for them to make a reasoned and informed decision in the case. The trial judge's responses to the jury's questions fell within her properly exercised discretion because they were consistent with Sammons's theory of the case and reiterated the pattern jury instructions. We also review the trial judge's decision to dismiss the case sua sponte under Superior Court Civil Rule 60(b) after the jury verdict and the entry of judgment. We hold that the trial judge abused her discretion when she dismissed the case sua sponte in the absence of a showing of fraud in the judicial process. Therefore, we vacate the trial judge's order dismissing the case and remand the case to the trial judge to reinstate the judgment entered after the jury verdict. Accordingly, we AFFIRM in part, VACATE in part, and REMAND in part.

FACTS AND PROCEDURAL HISTORY Gail Sammons, 41, suffered from sickle cell disease. On January 3, 2002, at approximately 3:15 p.m., Gail arrived at St. Francis emergency room complaining of pain similar to sickle cell crisis. On January 4, 2002, the staff treated Gail with pain medication and IV fluids, released her at approximately 2:10 a.m. and advised

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her to follow up with her doctor as soon as possible.

Later that day, at

approximately 12:55 p.m., an ambulance took Gail to Wilmington Hospital where Dr. Rosenbaum examined Gail at approximately 1:55 p.m. and diagnosed Gail as suffering from a sickle cell crisis. Dr. Perri, a resident, called Family Practice, Gail's primary care physicians, to admit Gail to the hospital. Family Practice residents, Dr. Robinson and Dr. Shokek, examined Gail. Dr. Robinson then called a Family Practice physician to discuss Gail's condition and develop a treatment plan. There is some dispute regarding the phone call and to whom Dr. Robinson spoke. Nevertheless, during that phone call, a Family Practice physician approved Gail's admittance to Wilmington Hospital. Dr. Shokek signed Gail's admitting order at approximately 6:30 p.m. The Family Practice residents' admitting

diagnosis was: painful sickle cell crisis. The hospital staff took Gail to a hospital floor at approximately 10:45 p.m. where her condition deteriorated. On January 5, 2002, at approximately 12:00 a.m., Gail was unresponsive. The staff called a code blue, and pronounced her dead at 1:25 a.m. Elizabeth Sammons, individually as the mother of Gail Sammons and as Administratrix of Gail Sammons's estate, filed this action in Superior Court against the physicians who treated Gail and their employers, alleging that their medical negligence caused Gail's death.

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Shortly after Sammons filed her complaint in Superior Court, counsel for Christiana Health Services, Inc. and various employee doctors filed a motion seeking a ruling on whether Sammons's affidavit of merit and curriculum vitae, filed under seal with the complaint, complied with 18 Del. C.

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