Lewis v. McCracken
N13C-10-175 RRC
| Del. Super. Ct. | Jul 5, 2017Background
- Plaintiff Tiffany Lewis alleges obstetric negligence by Dr. A. Diane McCracken caused her daughter Tyra’s Erb’s palsy during a shoulder dystocia delivery; suit also named All About Women of Christiana Care, Inc. (AAW).
- At trial a nurse midwife (Claire Szymanski) testified she instructed the mother to “push” after shoulder dystocia was recognized; Plaintiffs’ counsel did not depose Szymanski until shortly before trial and did not develop a negligence claim against her prior to trial.
- Defendants’ expert (Dr. Ouzounian) testified that telling a mother to push after the shoulder is stuck is generally not helpful and “could be” beneath the standard of care, but he gave no causation opinion linking that instruction to Tyra’s injury.
- The first trial ended in a mistrial. Afterward, Plaintiffs sought permission to “discuss” at retrial a new theory alleging AAW breached the standard of care by its midwife—effectively asserting AAW’s direct liability for the nurse’s act despite the statute of limitations having run on claims against the nurse.
- Defendants opposed, arguing the new theory is time‑barred, runs afoul of law‑of‑the‑case and retrial‑scope principles, and would require new expert discovery; Plaintiffs characterized the request as evidentiary and not a pleading amendment.
- The court held the request was effectively an attempt to assert vicarious liability for the nurse’s negligence; because any claim against the employee is time‑barred, AAW cannot be held vicariously liable and the application was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs may present at retrial a negligence theory that AAW directly breached the standard of care by its midwife (Szymanski) after the statute of limitations on claims against the nurse has expired | Lewis: The request is evidentiary — Plaintiffs may use Defendants’ damaging testimony and need only “discuss” that evidence with the jury; no new party or pleading is required | AAW: Allowing the theory is effectively adding a new claim/party contrary to 18 Del. C. § 6856; retrial should not add new issues and new evidence is irrelevant and prejudicial | Denied. The asserted claim is vicarious in substance; under Greco, employer liability requires a viable claim against the employee, which is time‑barred here, so AAW cannot be held liable |
Key Cases Cited
- Greco v. University of Delaware, 619 A.2d 900 (Del. 1993) (employer vicarious liability requires a viable cause of action against the employee)
- Fanean v. Rite Aid Corp. of Delaware, Inc., 984 A.2d 812 (Del. Super. Ct. 2009) (discusses corporate negligence principles such as negligent hiring/supervision)
- Mergenthaler v. Asbestos Corp. of America, 500 A.2d 1357 (Del. Super. Ct. 1985) (court may not create exceptions to statute of limitations absent express statutory language)