Knepper & Stratton Wilmington & Dover Delaware Personal Injury & Employment Law Firm

Recent Delaware Court Cases

March 9, 2009
Delaware Superior Court upholds admissibility of blood alcohol testing obtained by consensual blood draw conducted in a police station in felony DUI and Vehicular Assault case. Distinguishes State v. Crespo

On December 3, 2008, The Honorable Joseph E. Slights, of the Superior Court of the State of Delaware, denied Defendant's Motion to Suppress blood test evidence obtained in the Wilmington Police Station in State v. Cardona, a Vehicular Assault and felony DUI case.

Defendant contended that, "a blood draw conducted at a police station rather than at a medical facility constituted an "unreasonable" search and seizure as proscribed by the United States and Delaware constitutions and Delaware statutory law."

Defendant was stopped and arrested one block from a "hit and run" accident. After being taken into custody the Wilmington Police Officer took Defendant to the Wilmington Police Station where Omega Medical Services ("OMS") was called to the Wilmington Police Station to draw a sample of Defendant's blood, pursuant to a contract between the City of Wilmington and Omega Medical Services.

The Court observed, "The Fourth Amendment and its State constitutional counterpart protect 'personal privacy and dignity against unwarranted intrusion by the state.' In the context of bodily intrusions, such as certain surgical and medical procedures, the United States Supreme Court has recognized that such intrusions involve a defendant’s "most personal and deep-rooted expectations of privacy" and, therefore, implicate "a discerning inquiry into the facts and circumstances to determine whether the intrusion was justifiable....Courts conducting a 'discerning inquiry' into the withdrawal of blood from DUI suspects for the purpose of chemical testing have found that such a minimal bodily intrusion is usually justified, even in instances where no specific consent has been given and even w here blood is forcibly withdrawn against a suspect’s w ill. The constitutional analysis in blood extraction cases hinges on three prongs: (1) probable cause to believe a suspect is driving under the influence; (2) a search warrant or a recognized exception under the Fourth Amendment, and lastly; (3) reasonableness....A determination of reasonableness involves a balancing of the 'extent of the

intrusion upon the individual’s interests in personal privacy and bodily integrity' against the 'community’s interest in fairly and accurately determining guilt or innocence.'"

The Superior Court citing Schmerber v. California, 384 U.S. 757, 767 (1966), held; "[B]ased on now well-settled precedent, the Court is satisfied that police officers may require DUI suspects to submit to chemical testing of their blood, even without consent, as long as 'the means and procedures employed…respect[] relevant Fourth Amendment standards of reasonableness.' [Schmerber, 384 U.S. at 768.] In certain instances, the officers may use force to obtain the blood sample." [State v. McCann, 588 A. 2D 1100 (Del. 1991).]

The Court than went on to distinguish the case of State v. Crespo from this case based upon the facts of Crespo, in which a tiny woman was forcibly held down against her will in a police station by two Delaware State Troopers while blood was taken from her arm without her consent for a first offense DUI. The Court noted that in the case sub judice the Defendant was charged with felony DUI and Vehicular Assault and he consented to the withdrawal of blood in the police station.

The Court also noted that the legality of blood draws within police stations, jails and other correctional facilities has been upheld by courts in the States of California, South Dakota, Arizona, Colorado and Wisconsin.

February 28, 2009
On February 2, 2009,Delaware Superior Court Judge Jerome O. Herlihy dismissed Plaintiff's malicious prosecution claim against Kohl's Department Stores, Inc., holding, as a matter of law, that Kohl's had "probable cause" to have Plaintiff arrested.

On February 2, 2009, in the Delaware Superior Court case of Quatarone v. Kohl's Department Stores, Inc., The Honorable Jerome O. Herlihy dismissed Plaintiffs' malicious prosecution claim against defendant, holding as a matter of law, based upon undisputed facts, Defendant had "probable cause" to have Plaintiff arrested.

In his well reasoned opinion Judge Herlihy first set forth the elements of a malicious prosecution claim:

"To make a claim of malicious prosecution a plaintiff must prove that: (1) there must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in the action for malicious prosecution; (2) the former proceedings must have been by, or at the instance of the defendant in the action for malicious prosecution; (3) the former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution; (4) there must have been malice in instituting the former proceedings; (5) there must have been want of probable cause for the institution of the former proceedings; and (6) there must have been injury or damage resulting to the plaintiff from the former proceedings."

Judge Herlihy noted that the parties agreed that Plaintiff had met three of the six elements. "The disputed elements are whether: (1) Kohl’s was the initiating party of the underlying criminal action against Quartarone; (2) the shoplifting charge against Quartarone had sufficient probable cause at the inception of the arrest; and (3) whether Kohl’s actions throughout these proceedings were done with malice. The most contentious and difficult issue for Quartarone to establish is whether sufficient probable cause was present at the time of his arrest and when his shoplifting trial began."

Judge Herlihy embarked upon a thorough review of the prior Delaware case law concerning malicious prosecution, and found it wanting and unclear as to whether a jury or a judge or a combination of the two makes a determination as to the existence of "probable cause". The first reported Delaware Supreme Court case is the pre-civil war case of Wells v. Parsons, 3 Del. (1 Harr.) 505 (Del. 1842) which "held that probable cause was 'a mixed question of law and fact; the facts to be found by the jury, and the court to decide whether they amount to probable cause.'," The next reported case, Plummer v. Collins, 77 A. 77 (Del. Super. 1910), "In sum, the Court in that case treated the question of probable cause within a claim of malicious prosecution as a pure question of fact for the jury." This case was followed in Brown v. Cluley, 179 A.2d 93 (Super. Del. 1962). In Stidham v. Diamond State Brewery, Inc., 21 A.2d 283 (Del. 1941), the Court held by implication that when there are undisputed facts the court may rule as a matter of law upon the existence of "probable cause". A combination of Wells and Stidham were followed in the most recent Delaware court case of Wilson v. Draper-King Cole, Inc., 1986 WL 3638 (Del. Super. Mar. 7, 1986). Judge Herlihy following Wells, Stidham and Wilson decides that the proper standard for ruling as to whether or not there was sufficient "probable cause" "in a malicious prosecution claim is a mixed question of law and fact."

Relying upon the above standard Judge Herlihy decides that in the case sub judice the essential facts are undisputed and rules as a matter of law that Defendant Kohl's had sufficient probable cause to have the Plaintiff arrested.

February 28, 2009
Judge William C. Carpenter, Jr., in a January 30, 2009, decision grants Additur of $8,050.00 to one Plaintiff and denies new trial or additur to second plaintiff, in same Delaware motor vehicle accident, where a Delaware Superior Court jury had failed to

The Honorable William C. Carpenter, Jr., in his January 30, 2009 decision, upon Plaintiffs Motion for New Trial and/or Additur, in the Delaware Superior Court case of Delores A. Hinson and Juanita Scott v. Margarete R. Johnson, C.A. No. 06C-11-298 RRC, stemming from a September 16, 2008, jury verdict noted:

"Complicating what would normally be a routine damages case was the fact that both Plaintiffs had multiple prior instances in which they had suffered injuries. Ms. Hinson had been involved in four previous automobile accidents and both Plaintiffs were on social security disability and had not worked for years as a result of previous accident related injuries. It is with this backdrop that the jury was asked to decide whether the injuries alleged were related to the accident in April, 2005 which was the subject of this litigation."

"Adding to the difficulty of the jury’s task was the fact that the Defendant chose to present no medical testimony to contest the testimony presented by the Plaintiffs’ medical doctors. Therefore, while the credibility of the Plaintiffs’ subjective complaint would clearly be suspect based upon their accident history, the objective findings of the doctors were not disputed by the Defendant. Thus, the issue for the Court to decide is whether the facts of this case fall within the trilogy of [Delaware] Supreme Court cases, Maier, Amalfitano and Burkett-Wood, which require an award of damages."

Judge Carpenter cites Burkett-Wood v. Haines, 906 A.2d 756, 7656 (Del. 2006), which holds that:

"In Maier, we held that when the evidence establishes that an accident caused injuries, a jury is required to return a verdict of at least minimal damages. In Amalfitano, we held that “where medical experts present uncontradicted evidence of injury, confirmed by objective medical tests supporting a plaintiff’s subjective testimony about her injuries and offer opinions that the injuries relate to the accident about which the plaintiff complains, a jury award of zero damages is against the weight of the evidence.”

Judge Carpenter goes on to note that Burkett-Wood, at 766, holds that:

“[A]n MRI, an X-ray, and spasm revealed on palpation to a physical examination are considered objective medical evidence in this jurisdiction.”

Judge Carpenter than reviews the testimony at trial of Ms. Hinson's treating doctor, Dr. William Atkins, wherein Dr. Atkins documented spasm in Ms. Hinson's neck and back. In light of this uncontradicted objective medical testimony Judge Carpenter awarded additur to Ms. Hinson of $8,050.00. [Which is probably enough to cover the cost of presenting Dr. Atkins testimony, other litigation expenses, the attorney's contingent fee and nothing else.]

Judge Carpenter than analyzed the testimony of Dr. McIlrath, a chiropractor, in the case of Ms. Hinson's passenger, Juanita Scott, and found:

"[I]t is not clear that the objective findings that were made are undisputably in reference to the present accident. Dr. McIlrath had been treating Ms. Scott for at least three years prior to this accident, and it appears she had not fully recovered from her earlier injuries. As such, even though objective medical findings were made by the doctor, including spasms and an MRI reading, there remained a dispute as to whether these findings were connected to this accident. As such, this was properly a causation issue for the jury to decide, and the award of no damages is supported by the evidence and will not be disturbed."

February 3, 2009
In summary judgment opinion in Roberts v. DP&L, Superior Court Judge Robert B. Young eviserates Delaware Wrongful Death Statute

In a summary judgment opinion in the case of Roberts v. DP&L, et. al., released on January 30, 2009, The Honorable Robert B. Young, a judge of the Delaware Superior Court, sitting in Kent County, applied common law negligence principles to the statutorily created Delaware Wrongful Death statute in holding that in order for a beneficiary to recover for pain and suffering for the death of a loved one, the beneficiary must show physical injury. This ruling causes a conflict in Delaware Superior Court opinions and effectively eviscerates the Delaware Wrongful Death statute.

To reach this ruling the court framed the issue thusly:

"The question remains as to whether the general common law regarding the necessity to show physical injury to recover for mental anguish in a tort claim is somehow, altered or abated or diminished when the claim arises out of a statutory wrongful death claim."

The court, relied on the Delaware Supreme Court case of Merganthaler v. Asbestos Corp. of America, 480 A.2d 647 (Del. 1984) which held "that any claim in mental anguish requires physical injury", and ruled that Plaintiffs had not presented any evidence of physical injury, required by Merganthaler, to recover for mental anguish or emotional distress.

In order to reach this ruling the Court had to hold contrary to the 1985 Delaware Superior Court opinion of Okie v. Owens, 1985 WL 189292 (Del. Super.).

December 14, 2008
On November 13, 2008, The Honorable Richard R. Cooch, a judge of the Delaware Superior Court, dismissed plaintiff's personal injury motor vehicle lawsuit for Plaintiff's failure to provide a competent medical expert witness's opinion on causation.

In an opinion issued on November 13, 2008, in the Delaware Superior Court case of Clifton Cann v. Stephen Dunner, The Honorable Richard R. Cooch, Resident judge of New Castle County, granted Defendant's Motion for Summary Judgement. Dismissing Plaintiff Clifton Cann's negligence action against Defendant Stephen Dunner, which sought compensation for soft tissue injuries Plaintiff allegedly sustained in an automobile accident on November 1, 2005, with the Defendant. Plaintiff, indicated at the pre-trial conference on October 31, 2008, that Plaintiff's doctor, Domingo Singson, would not be called as a witness at the trial. Defendant immediately moved for summary judgment. The court granted Defendant's Motion for Summary Judgment quoting the Delaware Supreme Court case of Rayfield v. Power, 840 A.2d 642 (Del. 2000):

"In order to survive the [defendant's] motion for summary judgment, the [plaintiffs] were required to adequately establish all elements essential to their case that they would have the burden of proving a trial. In Delaware, in order to prevail in a negligence action, a plaintiff must prove by a preponderance of the evidence that the defendant's action breached a duty of care in a way that proximately caused injury to the plaintiff. With a claim for bodily injires, the causal connection between the defendant's alleged negligent conduct and the plaintiff's alleged injury must be proven by the direct testimony of a competent medical expert."

Judge Cooch also noted the more recent holding in the Superior Court case of Sluss v. Davis, 2006 WL 2846387 (Del. Super. 2006).

Judge Cooch noted, "In the instant case, the nature of Plaintiff's injuries must be noted. Plaintiff's injuries are exclusively soft tissue injuries. Unlike a fracture or laceration, a soft tissue injury cannot be seen by the naked eye. Soft tissue injuries may be caused by a number of activities or prior occurrences. Thus expert medical testimony is necessary to connect the defendant's negligence with the plaintiff's injuries in this particular case."

December 14, 2008
Delaware Superior Court Judge deny's new trial where jury refuses to award Plaintiff any damages despite Court granting directed verdict as to Defendant's liability for causing the motor vehicle accident.

On October 30, 2008, The Honorable Peggy L. Ableman, a Judge of the Delaware Superior Court, in the case of Christopher Campbell v. Kenneth A. Whorl, denied Plaintiff's Motion for a New Trial and granted Defendant's Motion for Costs in upholding the September 8, 2008, jury verdict for Defendant.

This case arose from an August 11, 2004 accident in which Plaintiff made a left turn and was struck on the passenger side by Defendant's vehicle which was being unlawfully driven on the shoulder of the roadway.

Plaintiff is and was employed as a postal carrier at the time of the collision.

Plaintiff initially sought treatment with his family doctor six days after the collision for neck pain and low back pain. Plaintiff's family doctor referred him to a specialist in physical medicine and rehabilitation who he initially saw in August 2004. Plaintiff attended six physical therapy sessions between August 30 and September 14, 2008.

Plaintiff's neck pain resolved in a few months, but his low back pain recurred intermittently and was exacerbated by his work as a postal carrier, specifically when he was re-assigned from a driving route to a walking route in 2006. Following the route change, Plaintiff returned to see the specialist in March of 2006, and was referred for an additional five sessions of physical therapy. Plaintiff next saw the specialist on July 30, 2008.

At trial Plaintiff's doctor testified concerning Plaintiff's low back and neck injury, in part, as follows:
"Q: Doctor, in your opinion were the injuries that you just diagnosed for us. . . caused by the motor vehicle collision of August 11, 2004?
A: Based upon the history that I received, yes."

The doctor went on to opine, "that Plaintiff's injuries would be permanent and that he expected Plaintiff to continue to experience exacerbations of his symptoms with physical activity."

The defendant's doctor expert witness testified that there when he examined Plaintiff and reviewed the records there were no "objective" signs of injury but by the history related by Plaintiff the doctor found Plaintiffs complaints of low-back pain from the time of the collision to the end of 2005 (4 months) to be consistent with lumbar strain resulting from the accident.

After the case was sent to the jury the jury sent a note to the judge asking:

"If we vote "YES" on question #1 [as to whether Defendant's negligence was the proximate cause of injury to Plaintiff], must we assign an amount of damages or is it OK to say ZERO?

When did [Plaintiff] consult an attorney in this matter [and/or] when was the lawsuit filed?

What was the time line for last treatment (PT) and when did he [Plaintiff] next consult a physician for this issue?"

After the judge responded that the "jury must assign a damages amount if proximate cause was found", the jury returned a verdict in favor of Defendant.

The judge upheld the Jury's verdict finding that the issue was one of credibility and that the jury could rationally find that the cause of Plaintiff's injuries pre-existed the collision. In support of this decision the court cited Gier v. Kananen, 1993 WL 227390 (Del. June 7, 1993) and Phillips v. Loper, 2005 WL 268042 (Del. Super. Jan. 27, 2005).

In granting Defendant's Motion for Costs, for the $2,000.00 expert witness fee of Defendant's doctor, the Court noted that the Plaintiff had rejected the $7,500.00 Arbitration award and turned down the pre-trial Offer of Judgment of $9,000.00.

November 18, 2008
Delaware Superior Court rules that New Jersey "verbal threshold" requirements do not preclude a Delaware insured from making a claim against her own uninsured motorist coverage for her "pain and suffering" damages.

In the case of Aneita Patterson v. State Farm Mutual Automobile Insurance Company, Delaware Superior Court Judge Joseph R. Slights, III, in an order dated October 29, 2008, denies summary judgment to defendant State Farm and re-affirms and adopts the prior 2004 Delaware Superior Court holding of Kent v. Nationwide Property and Casualty Insurance Co., 844 A.2d at 1092. In both decisions a New Jersey insurance company had denied the claim of a Delaware resident occupying a motor vehicle registered in Delaware who was involved in a car accident in the State of New Jersey with a New Jersey resident because the New Jersey insurance company, in this case Allstate, contended that Plaintiff's injuries did not meet the "verbal threshold" requirements of New Jersey law thus precluding the Plaintiffs from making a claim for "pain and suffering" damages in the State of New Jersey.

Plaintiff than made a claim for uninsured motorist benefits against her own Delaware insurance company, State Farm, pursuant to her uninsured motorist coverage. State Farm moved for summary judgment contending that the New Jersey vehicle was not an uninsured vehicle for purposes of Delaware law.

The court held:
"...the relationship between the parties here arises from a contract between a Delaware citizen and an insurance company registered to do business in Delaware. The contract was entered into and the premiums were paid in Delaware. The policy relates to a vehicle registered in Delaware and the scope of the coverage provided in the policy is governed by Delawae statutes. The public policy of Delaware expressed in its uninsured motorist statute, is to permit a Delaware motorist "to take to the roads" knowing that a certain amount of protection will always be available." Aetna v. Kenner, 570 A.2d at 1172 (Del. 1990). "The legislative intent of 18 Del. C. Section 3902 is to protect people injured by tortfeasors carrying little or no insurance." Deptula v. Horace Mann, 842 A.2d at 1235 (Del. Supr. 2004) "And, just as in Kent it is clear Delaware has the most significant relationship to the issue presented. [Citation omitted] Under the circumstances presented here, the Delaware underinsured motorist statute requires that the tortfeasor be considered uninsured in order to achieve the legislative objection fo that statute."

October 7, 2008
Delaware Supreme Court overturns Delaware Superior Court's grant of summary judgment to defendants on Plaintiffs' personal injury claim arising from a slip and fall in a Stanton Delaware supermarket.

On July 14, 2008, in the case of Hazel v. Delaware Supermarkets, Inc, Edy's Grand Ice Cream and Dreyer's Grand Ice Cream Holdings, Inc., the Delaware Supreme Court in a 3 to 2 decision overturned the Delaware Superior Courts grant of Defendants Motion for Summary Judgment. The Delaware Supreme Court reiterated its prior holding in Howard v. Food Fair Stores, New Castle, Inc., 201 A.2d 638 (Del. 1964) concerning Plaintiff's burden of proving negligence for a slip and fall upon a shopkeeper for the shopkeeper's breach of its "duty to keep the store premises in a reasonably safe condition for the use of the customers." To prove a breach of this duty, the Court stated, "the plaintiff must show that

(1) there was an unsafe condition in the defendant's store
(2) which caused the injuries complained of, and
(3) of which the storekeeper had actual notice or which could have been discovered by such reasonable inspection as other reasonably prudent storekeepers would regard as necessary'".

The Delaware Supreme Court reversed the Delaware Superior Court's grant of summary judgment stating, "Viewing the evidence and all reasonable inferences that can be drawn therefrom in a light most favorable to the nonmoving party (here, Hazel), we conclude that Hazel met her burden of making a prima facie showing of negligence."

October 5, 2008
Delaware Superior Court dismisses Plaintiff's claims against Shell Oil and Sunoco for claimant's exposure to xylene, naphtha, mineral spirits and toulene resulting in Acute Myelogenous Leukemia while employed at Warner Graham Company

In two separate decisions issued on September 19, 2008 and October 1, 2008, Herring, et al. v. Ashland, Inc., et al. and Herring, et al. v. Ashland, Inc., et al., the Honorable Jan Jurden dismissed Plaintiff's claims against Shell Oil and Sunoco for claimant's exposure to xylene, naphtha, mineral spirits and toulene resulting in Acute Myelogenous Leukemia while employed at Warner Graham Company. Judge Jurden dismissed the claims for failure of Plaintiff to show "product nexus". "In order to establish "product nexus" the plaintiff must establish that the defendant's product was present at the job site and that the plaintiff was in proximity to defendant's product at the time it was used. (emphasis added).

October 5, 2008
Delaware Superior Court dismisses two out of Plaintiffs' three Lemon Law claims for faulty tire pressure sensor

In an October 1, 2008 opinion in the case of Mayew v. Chrysler, LLC, the Honorable Peggy Ableman dismissed Plaintiff's "lemon law" claims brought pursuant to Delaware's Lemon Law and Delaware's Consumer Fraud Act for failure, "as a matter of law...to establish a substantial impairment to the value, safety, or use of their Jeep, nor can they demonstrate any fraud, misrepresentation or concealment." The court allowed plaintiffs to proceed on their claim pursuant to the Magnuson-Moss Federal Warranty Improvement Act.

The court disallowed Plaintiffs' ASE master certified repair technician expert opinions on diminution of value to Plaintiffs' Jeep as a result of the alleged defect and causation of the alleged defect because the expert's, "opinion was not based on reliable methods." The court cited to Delaware Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., in support of it's opinion.

The court found that the defect alleged by Plaintiffs', a malfunctioning tire air pressure warning light, did not "substantially impair the car's value as Plaintiffs were still able to drive it a significant distance in the year they owned it."

September 14, 2008
Delaware Supreme Court, in an en banc ruling, upholds jury award of $40,000.00 in wrongful death verdict for Plaintiff's death in an intersection motor vehicle collision caused by negligence of Delaware State employee driving a van for the Delaware Hospi

On August 26, 2008, the Delaware State Supreme Court, sitting en banc, denied Plaintiffs' appeal for a new trial in the case of Estate of Alberta Rae, et. al. v. Wade Murphy, et. al. In a jury trial below the jury awarded each of the decedent's daughters $20,000.00 for the death of their seventy-six year old mother, with whom they lived. In the unanimous decision, Chief Justice Myron Steele opined that, "The jury award here shocks no reasonable person's conscience given the actual evidence presented and falls within a rational range consistent with that evidence."

The case arose out of an intersection collision on Delaware State Route 299 in which the driver of a Delaware Hospital for the Chronically van failed to stop at a red-light and entered the intersection at 50 to 55 miles per hour where he struck the car being operated by 76 year old Alberta Rae. The jury found that Ms. Rae died as a result of the collision without suffering any conscious pain or suffering. Therefore, the jury did not award any damages to the Estate of Alberta Rae for her injuries or pain and suffering. The jury did award each of Ms. Rae's two (2) daughters the sum of $20,000.00 for their pain and suffering as a result of the loss of their mother, with whom they both lived.

The Plaintiff's appealed the Superior Court Judge's denial of their Motion for a New Trial or in the Alternative Additur contending the jury award was too low. In addition the Plaintiffs' appealed the Delaware Superior Court's granting of summary judgment to defendants on Plaintiffs' punitive damages claim. The Delaware Supreme Court upheld the Delaware Superior Court's granting of summary judgment to Defendants on Plaintiffs' punitive damages claim, stating that exceeding the speed limit by 5 mph and looking away from a red light for a brief amount of time does not "elevate the culpability of his [defendant's] conduct from negligence to the level of 'conscious indifference' or exhibit an 'I don't care' attitude" which would warrant an award assessing punitive damages .

August 17, 2008
Delaware Supreme Court holds that prejudgment interest pursuant to 6 Del. C. Section 2301(d) is mandated when the total amount of the verdict, against joint tortfeasors is greater than settlement offers extended individually to each tortfeasor.

On August 1, 2008 the Delaware Supreme Court issued a revised opinion of its July 1, 2008 decision in Christiana Care Health Services, Inc. and Mary Ann Connor, D.O., v. Linda Crist,et. al.

In its opinion the Delaware Supreme Court upheld a $2 million dollar malpractice verdict against Christiana Care Health Services, Inc., and Dr. Mary Ann Connor, D.O. for the death of 74 year old man who was admitted to the hospital, fell and subsequently died of the consequences of a subdural hematoma suffered in the fall. In addition the Delaware Supreme Court ordered the case remanded for imposition of prejudgment interest in the amount of at least $469,477.44 based upon the provisions of 6 Del. C. Section 2301(d).

In the opinion of the Delaware Supreme Court, Justice Ridgely stated:

"Matthew Harris was 74 years old when he fell and fractured his hip on February 1, 2004. He was admitted to CCHS's hospital and on February 5, asked for medication to help him sleep...The Ambien was administered at approximately 12:35 a.m. At approximately 4:30 a.m., Harris got out of bed and fell."

"Dr. Connor evaluated Harris at 9:25 a.m., and gave orders for his care including a CT (CAT) scan to rule out any cranial injury, including a subdural hematoma.   Dr. Connor ordered the CT Scan "routine" at that time. This CT scan was placed by the unit clerk as "CT head, with or without contrast" at 10:09. Around this time, Harris's family came in and explained to Nurse Godek that Harris had had a similar problem in a previous hospital visit, and no CT scan was given. Nurse Godek took blood and notified Dr. Connor of the results between 10:40 and 10:50 a.m. Dr. Connor testified that because Harris's physical condition was "dramatically different," she ordered a CAT scan stat [immediately]. There is no written documentation that Dr. Connor gave the nurse this order, and the nurse testified that she did not remember hearing it. A CT scan was eventually given to Harris at 2:45 p.m. The scan revealed that he had a subdural hematoma and needed emergency surgery to remove the clot. The surgery was performed but Harris remained comatose after the surgery and died ten days later."

More than 30 days "prior to trial Plaintiffs made separate written offers to settle all claims against each defendant for $1.25 million." Each offer was rejected. "The jury awarded damages totaling $2 million, apportioning fault 40 percent for Dr. Connor and 60 percent for CCHS."

The Jury found that Dr. Connor and CCHS had violated the "standard of care" by not ordering an immediate CT scan or if she did order the "immediate" CT scan she should have done so in writing as required by hospital policy and the standard of care.

Plaintiff's cross-appealed the trial judge's ruling in which he denied the award of pre-judgment interest pursuant to 6 Del. C. Section 2301(d) stating, "the apportionment of the jury verdict demonstrated that each individual defendant's liability did not exceed the settlement demand."

The Delaware Supreme Court held,

"The $2 million judgment in favor of Plaintiffs was a common liability of both Dr. Connor and CCHS. Thus, Plaintiffs may collect upon the full amount from either tortfeasor. The written settlement demand for each tortfeasor was for less than $2 million. Although a jury apportionment of fault affects contribution among joint tortfeasors, it does not change the common liability of each tortfeasor to Plaintiffs for the entire amount of the judgment. The plain language of Section 2301(d) requires that prejudgment interest be awarded when the settlement demand was less than the amount of damages upon which the judgment was entered, regardless of how the jury apportioned fault among the joint tortfeasors for purposes of contribution."

On appeal Defendant CCHS asserted that error had occurred for two reasons:

    1. The Judge allowed impermissible leading questions of the expert witnesses in the case, and
    2. Dr. Connor's lawyer's closing remarks improperly "vouched for the credibility of witnesses"

The Supreme Court held that "A trial judge has broad discretion in allowing leading questions of a witness including during the direct examination. D.R.E. [Delaware Rule of Evidence] 611(c) provides the boundaries of this discretion, 'Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.' The rule proscribing leading questions on direct examination is grounded in the principle that 'the most important peculiarity of the interrogational system is that it may be misused by suggestive questions to supply a false memory for the witness__that is, to suggest desired answers not in truth based upon a real recollection.' In this instance the "even though the trial judge did not apply D.R.E. 611(c) for each witness, CCHS has not demonstrated that the questions suggested false memories for any witness...Accordingly, we conclude that the trial judge's error was harmless.

As to CCHS's second argument, of impermissible vouching for a witness, The Court noted that "No objection was made contemporaneously to these statements," and found that the trial judge did not abuse in discretion in allowing the argument.

On appeal Dr. Connor argued that the trial judge abused his discretion when he allowed, over objection, one of Plaintiff's medical causation experts to offer the opinion that Mr. Harris's outcome would have been different if the CT scan had been performed and interpreted by 11:30 a.m. The Court found that the trial judge did not abuse his discretion in allowing this testimony

April 6, 2008
Delaware Court of Common Pleas excludes results of blood test administered in an unsanitary police station as an unreasonable search and seizure

    On December 20, 2007, the Chief Judge of the Delaware Court of Common Pleas issued a well reasoned decision in the matter of State v. Crespo in which the Court held it was unreasonable, pursuant to 21 Del. C. Section 2742, to restrain and forcibly extract blood from a non-consenting 125 pound woman defendant in an unsanitary police station for a misdemeanor first offense DUI.

    On the night of May 25, 2005, at approximately 11 pm, a Delaware State Trooper testified that he saw the Defendant's vehicle strike the median and flatten two tires while making a turn from Ruthar Drive onto Harmony Road. The vehicle continued on for a short distance to Brookhaven Drive where it stopped at a private residence. When the police officer approached the female Defendant, who was then out of the car, she explained that she did not stop when her tires went flat because she did not feel safe, as a female, in stopping her vehicle so late at night on the highway and a relative lived a relatively short distance away. The police officer asked the defendant to perform field tests which she refused because she was not then driving the vehicle and she was on private property. The police officer arrested the defendant and took her back to the State Police Troop No. 6 where she refused to take a breath test and also refused to consent to the extraction of her blood. Upon her refusal the police officer along with a colleague held her down in a chair in the police station and directed a medical technician, under contract to the State Police, to withdraw blood from the defendant. By admission, there is no policy or procedure, written or otherwise, regarding when and how blood is to be taken by the Delaware State Police.

    21 Del. C. Section 4742 states:

(a) If a person refuses to permit chemical testing, after being informed of the penalty of revocation for such refusal, the test shall not be given but the police officer shall report the refusal to the Department. The police officer may, however, take reasonable steps to conduct such chemical testing even without the consent of the person if the officer seeks to conduct such test or tests without informing the person of the penalty of revocation for such refusal and thereby invoking the implied consent law. [emphasis added]

The court stated; "The seminal case addressing the issue of blood extraction without consent is the 1966 U.S. Supreme Court case of Schmerber v. California, 384 U.S. 757 (1966)." Schmerber dealt with a DUI arrest and subsequent non-consensual blood extraction from a defendant by a doctor in a hospital. The Schmerber court condoned the forced extraction of blood by a physician in a hospital in a DUI prosecution, but applied a reasonableness standard, with limits, as evidenced the the language quoted from that decision by the Crespo court:

We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the mostrudimentary sort, were made by other than medical personnel or in other than a medical environment -- for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

The court went on to analyze two more U.S. Supreme Court decisions dealing with the reasonableness test in Fourth Amendment cases. Winston v. Lee, 470 U.S. 753 (1985) and Graham v. Connor, 490 U.S. 386 (1989).

The court then analyzed and distinguished the Delaware Supreme Court case of McCann v. State, Del. Supr., 588 A.d 1100 (1991), in which the Delaware Supreme Court condoned the use of a stun gun upon a Defendant at a hospital to protect the medical technician from the defendant while the technician was extracting blood. The court cites and distinguishes several other Delaware cases by the fact that they all involved the extraction of blood while the defendant was at a hospital and/or the crime at issue was a felony.

The specific holding of the court was:

"I find, absent a policy by the Delaware State Police governing the force[d] [sic] extraction of blood, forcing the Defendant to give her blood at a police station house for a first offense charge of Driving While Under the Influence of Alcohol is unreasonable pursuant to 21 Del. C. Section 2742."

The case is presently on appeal to the Delaware Superior Court by the State of Delaware.

March 16, 2008
Delaware Supreme Court overturns Robbery conviction because Defendant was not allowed to call character witnesses in his defense.

On Leap Day 2008 the Delaware Supreme Court in the case of Manna v. State overturned Mark Manna's convictions of Robbery 1st Degree, Wearing a Disguise During the Commission of a Felony and Conspiracy 2nd Degree. The court ordered the reversal because the Judge "abused his discretion" at Manna's jury trial in Superior Court by refusing to allow Manna to present any character witness who would have testified as to Manna's reputation for being an honest and truthful person. The Court held that the preclusion of the witnesses was such that it significantly prejudiced Manna and denied him a fair trial. The Delaware Supreme Court cited to a 1901 Delaware case to illustrate that it has long been a cornerstone of criminal law in the State of Delaware that a Defendant may offer character evidence in his own defense. In overturning the convictions the Court stated, "While the number of the character witnesses is subject to the discretion of a trial judge, precluding Manna from calling any witnesses at all to prove a relevant and pertinent character trait constituted an abuse of discretin that warrants a new trial."

March 16, 2008
Delaware Supreme Court dismisses Rape conviction for the States impermissible violation of the Defendant's right to a speedy trial.

On March 10, 2008, in the case of Dabney v. State, the Delaware Supreme Court held that where a Defendant is incarcerated for over one year without trial, in default of bail on a Rape charge, because of delays caused by prosecutors he is entitled to have the Rape conviction dismissed for violation of the Defendant's constitutionally protected speedy trial rights.

The Defendant was arrested in November of 2005 and indicted on January 9, 2006, yet the prosecutors did not submit evidence to a lab for DNA testing until March 1, 2006 only 36 days before the Defendant's first scheduled trial date. The State re-indicted the Defendant on March 22, 2008, adding charges. The second trial date was set for June 13, 2006. On May 16, 2006 the State requested a continuance of the June trial date because the DNA testing and analysis "was incomplete". On May 19, 2006, the Delaware Superior Court granted the State of Delaware's rescheduling request, over the Defendant's objection, setting the new trial for July 13, 2006 and ordering that the State provide the results of the DNA testing and analysis to the Defendant on or before June 13, 2006. While the State provided the Defendant with the testing results prior to June 13, 2006, they failed to provide the Defendant with the statistical analysis required by 11 Del.C. Section 3515. When the Defendant filed a pre-trial Motion in Limine objecting to the introduction of the DNA evidence, because of the State's failure, the newly assigned prosecutor claimed "suprise" and argued that the statistical analysis required by 11 Del. C. Section 3515 was not necessary in this case because the Defendant and victim were related. The July 13, 2006 trial was rescheduled over the Defendant's objections. On July 26, 2006, the State provided the previously unavailable and "unnecessary" statistical analysis to the Defendant. The trial eventually started on November 28, 2006, 372 days after the Defendant's arrest and incarceration. On November 30, 2006, the Defendant was convicted on one Rape Second Degree charge (out of 3), three counts of Sexual Solicitation of a Child, three counts of Possession of Child Pornography and three counts of Sexual Exploitation of a Child. On February 16, 2007, the Defendant was sentenced to 16 years in jail.

The Delaware Supreme Court applied the four factor balancing test set forth in the U.S. Supreme Court case of Barker v. Wingo, 407 U.S. 514 (1972) adopted by Delaware in the case of Johnson v. State, 305 A.2d 622 (Del. 1973). The four factors are (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his speedy trial right; and (4) the resulting prejudice to the defendant. The first factor, length of the delay, is a trip wire which must be triggered before the court will consider the other three factors. The Delaware Supreme Court found that because the delay exceeded 1 year between incarceration and trial "we are compelled to find that the length of delay necessitates our consideration of the other Barker factors." The court found that the State caused all of the delay and that the Defendant has asserted his speedy trial right when it objected to the State's continuance request of May 2006. The court then went on to "analyze this prong "in light of three of defendants' interests that the speedy trial right was designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused: and (3) limiting the possibility that the defense will be impaired." Middlebrook v. State, 802 A.2d 268 (2002) The Court stated: "Here the fundamental prejudice lies in the fact that Dabney remained incarcerated without trial in default of bail for over a year before trial. Where the defendant is incarcerated, intuitively it is more difficult for him to prepare for trial, to meet with counsel, and to participate in gathering evidence in his defense....The State's preference to have DNA analysis available when it may have been unnecessary for all but one of the pending charges, did not outweigh the prejudice to a defendant imprisoned for over a year because he lacked the wherewithal to post bail."
This opinion is noteworthy in Delaware, which has no per se statutory or judicially fixed deadlines in which to bring a person charged with a crime to trial, because it says that a one year delay of a trial of an incarcerated defendant on a bailable offense, which is not at the behest of the defendant, is a denial of a defendant's constitutionally protected right to a speedy trial.

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