Phelps v. West
N15C-12-136 AML
| Del. Super. Ct. | Oct 17, 2017Background
- Anthony Phelps underwent cardiac catheterization on Aug. 22, 2014 (Dr. West), was recommended for bypass, and later died Sept. 20, 2014 after an MI. Plaintiffs are his estate and family.
- Christine Brady, a scheduler in Dr. Davis's office, made contemporaneous handwritten notations on an internal "face sheet" reflecting scheduling changes; that face sheet was produced in discovery.
- Brady later prepared a typed "2015 Chart Note" (initially dated 2015, then marked 2014) that transcribed the face sheet; she first testified she made it in 2014 but later admitted creating it in 2015 after Phelps's death.
- Plaintiffs allege Brady fabricated a post-death chart note to hide an earlier contemporaneous note that would have shown Phelps complained of chest pain; they amended to add fraud/misrepresentation claims and sought wide discovery and sanctions-related relief.
- Plaintiffs also sought an adverse-inference jury instruction as to (1) the alleged missing contemporaneous chart note, (2) an initial scheduling letter Brady removed and placed in a shredding bin when a later scheduling letter replaced it, and (3) two pages (fax cover and billing sheet) allegedly missing from materials Dr. West produced from Dr. Grubbs.
- The court allowed expansive discovery but, on the present motion, examines whether the record supports fraud, reliance/damages, or a finding of willful spoliation warranting an adverse inference.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs proved fraud/misrepresentation based on Brady's post-death 2015 Chart Note | Brady created a false contemporaneous 2014 chart note, destroyed it, and substituted the 2015 Chart Note to mislead Plaintiffs in evaluating the negligence claim | No evidence a separate contemporaneous chart note ever existed; 2015 Chart Note merely transcribes the produced face sheet; no misrepresentation shown | Granted summary judgment for Defendants — no reasonable evidence of a falsifying misrepresentation |
| Whether Plaintiffs showed justifiable reliance and damages from the 2015 Chart Note | Plaintiffs' counsel and expert relied on the 2015 Chart Note in litigation strategy and expert opinions, causing prejudice | Reliance by counsel/expert does not substitute for plaintiff's own justifiable reliance; Plaintiffs offer only speculation about what would differ absent the missing note | Defendants entitled to summary judgment on fraud claim — Plaintiffs failed to show justifiable reliance or resulting damages |
| Whether an adverse inference instruction is warranted for the allegedly missing contemporaneous chart note | Brady intentionally destroyed or hid an earlier chart note; adverse inference required because spoliation impaired proof of Plaintiffs' claim | No evidence the note ever existed or that any destruction was willful/bad faith; routine destruction of scheduling letters plausible | Adverse inference denied — no factual basis for intentional spoliation regarding the chart note |
| Whether an adverse inference instruction is warranted for the scheduling letter and missing fax pages from Grubbs | Removal of the initial scheduling letter and omission of two fax pages indicate intentional withholding to prejudice Plaintiffs | Scheduling letters often discarded in ordinary course; no evidence of bad faith re: missing Grubbs pages; relevant angina info was in producible pages and in West's notes | Adverse inference denied — destruction in ordinary course and no showing of willful/bad-faith spoliation |
Key Cases Cited
- Brzoska v. Olson, 668 A.2d 1355 (Del. 1995) (summary judgment standard; non-movant must show genuine issue of material fact)
- Judah v. Delaware Trust Co., 378 A.2d 624 (Del. 1977) (summary judgment principles and drawing inferences for non-movant)
- Wootten v. Kiger, 226 A.2d 238 (Del. 1967) (summary judgment when only one reasonable inference may be drawn)
- Stephenson v. Capano Development, Inc., 462 A.2d 1069 (Del. 1983) (elements of fraud claim)
- Johnson v. Preferred Professional Ins. Co., 91 A.3d 994 (Del. Super. 2014) (reliance element in fraud requires justifiable reliance by plaintiff)
- Pikey v. Bryant, 203 S.W.3d 817 (Mo. Ct. App. 2006) (discussing adverse inference/spoliation principles)
- Sears, Roebuck & Co. v. Midcap, 893 A.2d 542 (Del. 2006) (adverse inference requires willful or reckless failure to preserve evidence; routine destruction does not warrant inference)