Cooney-Koss, et al. v. Barlow, M.D., et al.
Annotate this Case
Download PDF
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
LAURA COONEY-KOSS and
JEROME KOSS,
Plaintiffs,
v.
JENNIFER H. BARLOW, M.D.,
A. DIANE MCCRACKEN, M.D.,
and ALL ABOUT WOMEN
OF CHRISTIANA CARE, INC.,
Defendants.
)
)
)
)
)
) C.A. No. N10C-10-230 WCC
)
)
)
)
)
)
)
Submitted: October 15, 2012
Decided: February 28, 2013
On Defendants’ Renewed Motion for Judgment As a Matter of Law or,
in the Alternative, Motion for a New Trial - DENIED
On Plaintiff’s Motion for Costs - GRANTED IN PART
MEMORANDUM OPINION
Robert J. Leoni, Esquire. Shelsby & Leoni, P.A., 221 Main Street, Wilmington,
DE 19804. Attorney for Plaintiffs Laura Cooney-Koss and Jerome Koss.
Gregory S. McKee, Esquire, and Joshua H. Meyeroff, Esquire. Wharton, Levin,
Ehrmantraut & Klein, P.A. 300 Delaware Avenue, Suite 1220, P.O. Box 1155,
Wilmington, DE 19899. Attorneys for Defendants Jennifer H. Barlow, M.D., A.
Diane McCracken, M.D., and All About Women of Christiana Care, Inc.
CARPENTER, J.
The Court has before it several post-trial motions regarding this medical
malpractice case. They are: (1) Defendants’ Motion for Judgment as a Matter of
Law pursuant to Superior Court Rule 50(b); (2) Defendants’ Motion for New
Trial; and (3) Plaintiffs’ Motion for Costs. The Court will address each motion
separately.1
(1)
Rule 50(b) Motion
Under Rule 50, this Court is required to view the evidence in the light most
favorable to the nonmoving party. Utilizing that standard, this Court must
determine whether the evidence and all reasonable inferences to be drawn
therefrom could justify a jury verdict in favor of Plaintiffs. In order to find for the
moving party, this Court must find that there is no legally sufficient evidentiary
basis for a reasonable jury to find for Plaintiffs. Thus, the factual findings of a
jury will not be disturbed if there is any competent evidence upon which the
verdict could reasonably be based.2
Defendants assert that since Plaintiffs’ expert, Dr. Spellacy, agreed that a
hysterectomy would be appropriate if conservative measures to stop Plaintiff’s
1
Laura Cooney-Koss and Jerome Koss will collectively be referred to as “Plaintiffs” herein when
discussing damage awards. However, “Plaintiff” or “Plaintiff’s” will be used to refer to Laura
Cooney-Koss when discussing medical procedures performed.
2
See Mumford v. Paris, 2003 WL 231611, at *2 (Del. Super. Jan. 31, 2003) (citing Del. Elec.
Coop. Inc. v. Pitts, 1993 WL 445474, at *1 (Del. Super. Oct. 22, 1993)).
2
bleeding failed, there was no basis upon which the jury could have found a
violation of the standard of care. While it is true that all the experts agree with
this general proposition, they disagree whether all the appropriate conservative
measures were performed by Dr. McCracken before performing the surgery.
Further, Dr. Spellacy believed that the bleeding could have been controlled if Dr.
McCracken had exhausted these conservative measures and, therefore, made the
hysterectomy unnecessary. Specifically, Dr. Spellacy indicated that Dr.
McCracken violated the standard of care by: (a) failing to order and administer
additional medication before and during the D&E; (b) failing to massage the
Plaintiff’s uterus; (c) failing to perform the O’Leary stitch/Uterine Artery Ligation
once the open procedure had begun; and (d) failing to perform the B-Lynch
procedure.
Clearly, when the Court views the evidence in the light most favorable to
Plaintiffs, Dr. Spellacy’s testimony provides a basis for the jury to find that Dr.
McCracken failed to exhaust all appropriate conservative measures before taking
the drastic step of performing the hysterectomy. As such, there was a reasonable
basis in the record to support the jury’s verdict and it will not be disturbed. As a
result, Defendants’ Motion for Judgment as a Matter of Law is hereby DENIED.
3
(2)
Rule 59 - Motion for New Trial
Once a jury’s verdict has been returned, it should only be set aside for
exceptional circumstances. In other words, a new trial should not be granted
unless the verdict is manifestly and palpably against the weight of the evidence or
where there would be a miscarriage of justice to let the verdict stand.3 In support
of this Motion, Defendants allege six (6) “errors” by the Court that they believe
justify a new trial. Before addressing each of these areas, the Court would like to
suggest to counsel if one desires to argue that a particular ruling by the Court was
incorrect, then one should at least have the courtesy to order the transcript of the
particular proceeding in which the alleged error occurred. This would allow for a
more thorough and precise argument instead of a general conclusory assertion of
error. That said, the Court will now review each claim set forth in the Motion.
(a)
First, Defendants argue that the Court should not have allowed the
jury to consider whether Dr. McCracken was negligent for failing to review the
triage records on the day of the incident. Because no particular testimony is
referenced in Defendants’ Motion, the Court believes Defendants are arguing that
the jury should not have been allowed to consider Dr. Spellacy’s testimony that
Dr. McCracken, in making the decision leading up to the hysterectomy, should
3
See id. at *3 (citing Burgos v. Hickok, 695 A.2d 1141, 1145 (Del. 1997)).
4
have reviewed Plaintiff’s medical records before making that decision. Dr.
Spellacy testified that the triage records would have provided relevant information
in making the decision whether to perform the hysterectomy or, instead, continue
with a more conservative treatment. This was clearly relevant to the issue of
whether Dr. McCracken violated the standard of care, and the testimony was
properly allowed. In this claim Defendants also reference the testimony of Jerome
Koss concerning his daughter’s emotional distress. Since the daughter was only a
few weeks old, it would have been difficult for her to communicate such distress
to him. What Mr. Koss did say was that he was saddened by the fact that his
daughter would not have the benefit of a future sibling. This is relevant to the
effect that Dr. McCracken’s negligence had on Mr. Koss and, therefore, was
appropriate testimony.
(b)
Without reference to specific testimony or a specific ruling, it is
difficult to know exactly what error Defendants assert the Court committed in the
second claim. Certainly, the medical treatment provided to Plaintiff before and
after the hysterectomy is relevant. This would include what blood products were
provided, what records were reviewed, and the interaction between the doctor and
the patient during this event. There was no evidence to suggest that Dr.
5
McCracken was simply a “bad” doctor and nothing said by the Court, counsel or
any witness, including Plaintiff, left that impression.
(c)
The alleged error in this third complaint relates to the Court’s rulings
that prohibited the discussion of an alleged blood disorder. Despite years of
discovery, Defendants waited until the eve of trial to raise the issue of whether
Plaintiff suffered from a blood disorder that exacerbated this event and led to the
hysterectomy. It is the Court’s recollection that even at the pretrial conference, the
issue had not been fully developed nor had an expert report been prepared.
However, a report was eventually obtained, which claimed Plaintiff suffered from
an “unknown” blood disorder. Interestingly, Defendants had ordered a
hemoglobin consult and laboratory work after the hysterectomy to determine
whether there was a blood disorder and none was discovered. It was only after an
unrelated incident in which Plaintiff also had a bleeding issue that the matter was
more fully explored by counsel. Not only was the new opinion rendered
approximately a week before trial too late in the game, the opinion was so
conclusory without any well-founded basis that the Court simply found it to be
unreliable. The Court also believes it provided counsel an opportunity to seek a
continuance of the trial to allow this issue to be more fully explored, and
Defendants chose not to avail themselves of this opportunity. What is surprising
6
to the Court is that from the very beginning of this litigation Plaintiff’s unexpected
bleeding was a key issue but no expert opinion in this area was given until just
before trial. In fairness to the Defendants the subsequent bleeding event was
significant to the expert in rendering the new opinion. But while the event
perhaps provided an opportunity to try to open a door that had been shut years
before by the testing done at the request of Dr. McCracken, neither the opinion or
the timing justified it being used at trial. The opinion was rendered too late and
would have caused the trial to be continued to allow rebuttal by Plaintiff, and
experienced counsel decided to proceed to trial. As a result, the Court’s decision
here was not only correct but fair.
(d)
Fourth, Defendants claim the Court erred by not allowing Dr. Lui, the
treating anesthesiologist, to testify. Dr. Lui had no recollection of the patient, the
event, or, frankly, anything about this case. Therefore, allowing him to testify
would be speculative at best and inappropriate. Defendants also raised an
objection regarding the Court’s decision to allow Alphonsine Sahou, the nurse
anesthetist, to testify. Unlike Dr. Lui, Ms. Sahou was permitted to testify because
she was the nurse who actually wrote the anesthetist notes during the medical
procedure and, therefore, could provide information as to how the notes were
created and what was represented in those records. Ms. Sahou’s testimony was
7
relevant to the issues and the opinions subsequently rendered by the experts and
properly admitted.
(e)
The Court ordered counsel for Defendants to produce, at a reasonable
time before trial, material that they would be using to question expert witnesses.
Defendants’ counsel did not produce the material they say the Court erred in
disallowing and as such, having failed to comply with the Court’s ruling now
complain. If Defendants’ counsel had provided that material ahead of time, then
they would have been permitted to use it. They didn’t, and the material was
appropriately excluded. The Court also notes that this was not the only material
used by counsel in examining experts, so any limitation caused by the Court’s
ruling had little, if any, bearing on counsel’s ability to question the witness.
(f)
Lastly, the Court does not recall the “send a message” statement
allegedly made by Plaintiffs’ counsel to the jury. However, even if it did occur,
the Court’s notes do not reflect that an objection was made by counsel nor was
there any request for a curative instruction. Assuming in the alternative that the
statement did occur, it is not one which was so outrageous that it would cause the
Court to declare a mistrial.
8
In conclusion, the Court finds the six (6) alleged errors claimed by
Defendants are without merit and provide no basis to grant a new trial. As such,
Defendants’ Motion is hereby DENIED.
(3)
Motion for Costs
As the prevailing party, Plaintiff is entitled to court costs pursuant to Rule
54 of the Superior Court Civil Rules. The Court first finds that the $985.50 of
costs associated with their litigation of this matter are reasonable, and Plaintiff has
filed sufficient supporting documentation relating to this claim. As such, the
amount will be awarded as appropriate costs.
Plaintiff is also entitled to recover reasonable fees associated with the
testimony of their experts. Unfortunately, Dr. Spellacy simply submitted a bill for
$4,000 without breaking down what was represented by that figure. As such, the
Court will use the hourly rate listed for his deposition testimony of $500 an hour
and allow for three (3) hours of testimony time. This would be sufficient to cover
the several hours of testimony in Court and any wait time that occurred that day.
In addition, the request from Dr. Spellacy for $384.60 for travel expenses is
reasonable and will be allowed. As such, the Court awards the following related
to Dr. Spellacy.
9
(A)
$1500 ($500 x 3 hours) for court testimony
(B)
$ 384.60 for reasonable transportation expenses
Total - $1884.60
Using the same analysis for Dr. Cartagena the Court awards the following
related to his testimony:
(A)
$1125 ($375 x 3 hours) for court testimony
(B)
$ 215 for reasonable transportation expenses
Total - $1340.00
IT IS SO ORDERED.
/s/ William C. Carpenter, Jr.
Judge William C. Carpenter, Jr.
10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.