McCool v. Gehret

This is an appeal from the Superior Court. In their original complaint, the plaintiffs-appellants, Paul and Tammera McCool (the “McCools”) alleged medical negligence by the defendant-appellee, John Gehret, M.D. (“Dr. Gehret”), and certain other health care providers. The complaint was amended to allege tortious interference by Dr. Gehret with the plaintiffs’ medical expert witness, Robert Dein, M.D. (“Dr. Dein”). Over the plaintiffs’ objection, the Superior Court granted Dr. *271 Gehret’s motion to sever the trial of the McCools’ claim for medical malpractice from the trial of their claim for tortious interference.

A jury trial was held on the medical malpractice claim only, beginning on January 18, 1994. The jury returned a verdict in favor of Dr. Gehret on January 26, 1994. On February 3, 1994, the plaintiffs filed a motion for a mistrial or, in the alternative, a new trial.

On April 20, 1994, a one-day bench trial was held regarding the tortious interference claim. This bench trial was held before a different Superior Court judge than the one who had presided at the malpractice trial. Nevertheless, the first judge was called to testify on behalf of Dr. Gehret regarding the McCools’ tortious interference claim.

On June 3, 1994, the second judge entered judgment in Dr. Gehret’s favor on the tor-tious interference claim. On that same day, the first judge, who had presided at the malpractice trial, denied the McCools’ motion for a mistrial or a new trial. The Superior Court entered final judgment in favor of Dr. Gehret in the entire proceeding.

The McCools have appealed the judgments entered in Dr. Gehret’s favor on both claims. The McCools raise eight contentions in this appeal. First, the Superior Court improperly granted the defendant’s motion in limine to preclude evidence at the malpractice trial regarding Dr. Gehret’s alleged use of alcohol. Second, the Superior Court abused its discretion in severing the trial of the medical malpractice claim from the trial of the tortious interference claim. Third, the Superior Court erred in granting the motion in limine to exclude from the malpractice trial evidence that Dr. Gehret attempted to intimidate Dr. Dein. Fourth, the jury’s verdict in Dr. Gehret’s favor in the medical malpractice claim was contrary to the weight of the evidence. Fifth, the Superior Court erred in failing to adequately investigate an allegation of potential juror misconduct. Sixth, it was error for the judge who presided over the malpractice trial to testify for Dr. Gehret in the tortious interference trial, especially when the motion for a new trial on the medical malpractice claim remained pending. Seventh, the McCools were denied their right to a jury trial regarding their tortious interference claim. Eighth, the Superior Court erred in failing to award the plaintiffs nominal damages plus punitive damages in their tortious interference claim.

This Court has concluded that the Superi- or Court erred in excluding evidence from the malpractice trial relating to Dr. Gehret’s indirect communications with the plaintiffs’ expert medical witness, Dr. Dein. It was also reversible error for the judge who presided over the malpractice trial to testify as a witness at the tortious interference trial. Additionally, the record reflects that the McCools were improperly denied their right to a jury trial regarding their tortious interference claim. Accordingly, the judgments of the Superior Court in favor of Dr. Gehret on both the medical malpractice claim and the tortious interference claim must be reversed. 2

FACTS

Labor and Delivery

On the morning of Sunday, October 22, 1989, at approximately 10:00 a.m., Mrs. Tammera McCool (“Mrs. McCool”) telephoned her treating obstetrician, Dr. Gehret. She informed him that she was experiencing the preliminary onset of contractions. Dr. Gehret told her to call back through his answering service when her labor became more serious.

Later in the afternoon, Mrs. McCool again telephoned Dr. Gehret and described her symptoms to him. He advised her to go to the Medical Center of Delaware. Mrs. McCool was admitted as a patient at approximately 5:20 p.m. She was accompanied by her husband, Paul McCool, and her father-in-law.

At 8:00 p.m., Dr. Gehret arrived at the Medical Center and examined Mrs. McCool. After Dr. Gehret’s initial examination of Mrs. *272 McCool, he continued to monitor her progress every thirty to forty-five minutes until approximately midnight when Mrs. McCool became fully dilated. At 1:30 a.m., after the labor had failed to progress, Dr. Gehret attempted to complete a vaginal delivery by forceps. He determined, however, that a cephalopelvie disproportion would prevent a vaginal delivery.

Dr. Gehret then performed a caesarian section and delivered a healthy baby boy at approximately 2:00 a.m., Monday, October 23. After the delivery, Dr. Gehret noticed bleeding from the right side of the incision as he was suturing Mrs. McCool. The record reflects that the source of the bleeding was likely a tear resulting from the removal of the baby. There was no contention by any witness that the development of such bleeding was medical negligence. Dr. Gehret sutured the bleeding area, determined the bleeding had stopped, and then completed the closure of Mrs. McCool’s incision.

Post-Delivery Condition Mrs. McCool Deteriorates

Following the delivery, Mrs. McCool was taken to the recovery room. Her vital signs were examined and found to be normal. Her blood pressure was 80/52 and her pulse was 100. Dr. Gehret checked on Mrs. McCool before he left the hospital at 2:40 a.m. to go home.

Shortly after Dr. Gehret’s departure, Mrs. McCool’s blood pressure declined to 75/40 and her pulse increased to 110. From 3:00 a.m. until 4:30 a.m., doctors on the Medical Center’s staff took several steps in an attempt to correct Mrs. McCool’s worsening condition. Nevertheless, no improvement occurred. Mrs. McCool’s blood pressure dropped to 50/35 and her pulse to 95.

Dr. Gehret was called at home at 4:30 a.m. He was advised of Mrs. MeCool’s condition by Dr. Cherie Johnson (“Dr. Johnson”), a resident physician on duty in the obstetrical unit. Dr. Gehret requested that certain blood tests be performed. He asked to be informed of the results.

At approximately 6:30 a.m., Dr. Gehret was called at home again. He was advised that Mrs. McCool’s blood tests revealed a critically low platelet count. With such a low platelet count, Mrs. McCool’s blood lacked the ability to clot. Without a clotting capacity, Mrs. McCool could not have further surgery. At 6:45 a.m., Dr. Gehret authorized infusion of additional platelets to prepare Mi’s. McCool to be taken back into surgery.

Dr. Gehret returned to the hospital at 8:00 a.m. At 9:15 a.m., Dr. Gehret noted that Mrs. McCool was obviously having intra-ab-dominal hemorrhaging following the caesarian section. Mrs. MeCool’s platelet level eventually became re-established so that further surgery could be performed.. At 10:20 a.m., Mrs. McCool was taken to the operating room. By this time, her condition was life threatening.

Emergency Surgery Right Ovary and Uterus Removed

Dr. Gehret performed an emergency exploratory laparotomy. He discovered that a large volume of blood had accumulated in Mi’s. McCool’s abdomen. 3 Dr. Gehret was initially assisted by Dr. Charles Whitney (“Dr. Whitney”), an oncological surgeon, and Dr. Johnson. Dr. Whitney testified that he found a “bleeder,” sutured it, and left the operating room before surgery was completed.

Dr. Gehret testified that there was bleeding from more than the one source. Dr. Gehret thought one origin of the bleeding was in the area of the right ovary. He removed that ovary but the bleeding persisted. He was concerned that if he did not resolve the bleeding, Mrs. McCool would die, since she could probably not survive a third surgery. 4 Dr. Gehret examined Mrs. McCool’s uterus and found it “boggy” with blood. Troubled by the apparent inability of the uterus to contract and concerned that it would cause further complications, Dr. Geh- *273 ret deemed it necessary to remove the uterus.

Surgery was then completed. Mrs. McCool was discharged from the hospital several days later. She has suffered no further medical complications. The removal of her uterus has, however, rendered her sterile.

Mrs. McCool Changes Physicians Medical Malpractice Alleged

After her discharge, Mrs. McCool returned to the care of her former obstetrician/gynecologist, Dr. Dein. Dr. Dein is licensed to practice medicine in Pennsylvania. He is a member of the medical staff of the Bryn Mawr Hospital. During an office visit with Dr. Dein, Mrs. McCool told him about her ordeal during childbirth.

Dr. Dein subsequently reviewed the medical records relating to the delivery of Mrs. McCool’s son. Dr. Dein concluded that Mrs. McCool’s internal bleeding should not have been allowed to persist for eight hours until she was near death. In addition, Dr. Dein maintained that once Mrs. McCool was readmitted to surgery, her bleeding could have been controlled without the removal of her right ovary and uterus.

Dr. Dein had never before served as an expert witness in a medical malpractice suit. He agreed, however, to help Mrs. McCool in a law suit she filed against Dr. Gehret. Dr. Dein wrote a report that was sharply critical of Dr. Gehret’s medical care and treatment of Mrs. McCool.

On May 23, 1991, Mrs. McCool and her husband filed a medical malpractice suit against Dr. Gehret, the Medical Center, and the attending resident, Dr. Johnson. 5 Their original complaint alleged that Dr. Gehret was negligent, first, in permitting Mrs. McCool to hemorrhage for eight hours; and, second, in removing Mrs. McCool’s uterus and right ovary without medical justification. The McCools relied upon Dr. Dein’s report to support their allegations.

McCools’ Medical Expert Dr. Gehret’s Indirect Communications

Dr. Gehret became aware of Dr. Dein’s report in the fall of 1991. He found the tone of the report derogatory. In November 1991, Dr. Gehret telephoned an acquaintance on the medical staff at the Bryn Mawr Hospital, Dr. Stephen Krell (“Dr. Krell”). Dr. Gehret testified that he was interested in Dr. Krell’s estimation of Dr. Dein and wanted to ascertain Dr. Dein’s motive in writing a report filled with “outrageous statements.”

Dr. Gehret also asked Dr. Krell to speak to Dr. Dein about his role in the case, knowing that Dr. Dein intended to serve as the plaintiffs’ expert witness. Dr. Krell apparently felt uncomfortable complying with Dr. Geh-ret’s request and did nothing in response. After Dr. Gehret contacted Dr. Krell by telephone a second time, however, Dr. Krell complied with Dr. Gehret’s request.

In December 1991, following the second phone call from Dr. Gehret, Dr. Krell approached Dr. Dein in the physicians’ locker room at the Bryn Mawr Hospital. According to Dr. Dein, Dr. Krell informed him that Dr. Gehret had asked him twice to relay the message that it was inappropriate for doctors to testify against doctors. 6 Dr. Dein believed the message was intended to coerce or intimidate him into not testifying.

On April 1, 1992, Dr. Dein was deposed. On that same day, Mrs. McCool asked Dr. Dein to help her locate a Delaware physician to assist as an expert witness in her litigation. Dr. Dein refused, indicating that he was uncomfortable and felt it would not be in his best interest to become more involved in her lawsuit. Dr. Dein assured Mrs. McCool, however, that he still intended to serve as her expert medical witness at trial.

Complaint Amended Tortious Interference Alleged

On January 19, 1993, the McCools amended their original complaint to add a second cause of action against Dr. Gehret for tor- *274 tious interference. The McCools alleged that Dr. Gehret’s conduct in conveying a message to Dr. Dein constituted the common law tort of intentional interference with their legally protected right to call witnesses on their behalf. The parties continued to prepare for a trial.

In November 1993, the McCools’ attorney and Dr. Krell had a telephone conversation concerning Dr. Krell’s “attempted intimidation” of Dr. Dein. Later that night, Dr. Krell telephoned Dr. Dein at home. Dr. Krell informed Dr. Dein that he was surprised and disappointed to have learned that Dr. Dein had remained involved in the McCools’ suit. In response, Dr. Dein told Dr. Krell that he was reconsidering his involvement. Dr. Dein perceived the telephone conversation as threatening. Following that conversation, Dr. Dein decided not to testify at trial as an expert witness for the McCools.

Dr. Gehret’s Pretrial Motion Severance Granted/'Evidence Excluded

The McCools’ suit against Dr. Gehret was scheduled for trial on January 18, 1994. On December 15,1993, Dr. Gehret filed a motion in limine. Dr. Gehret requested that the Superior Court sever the trial of the McCools’ tortious interference claim from the trial of their medical malpractice claim.

The McCools challenged Dr. Gehret’s motion to sever the trial of their two claims. They argued that the evidence concerning Dr. Gehret’s attempt to intimidate their expert witness was relevant to the medical malpractice case. According to the McCools, that evidence was admissible to impeach Dr. Gehret’s credibility and because it manifested Dr. Gehret’s “state of mind and his culpability.”

On December 30,1993, the Superior Court granted Dr. Gehret’s motion. The Superior Court ordered the claims severed because it was persuaded that trying the two claims together would unfairly prejudice Dr. Gehret and could be confusing to the jury. According to the Superior Court, the tortious interference claim necessarily included an assessment of the effect of the intimidation efforts in harming the McCools’ medical malpractice suit. Therefore, it ruled that the claims should be heard separately. Because much of the same evidence pertained to both claims, however, the Superior Court offered to explore the possibility of retaining the same jury to hear both claims consecutively, or, in the alternative, holding the medical malpractice trial before a jury, followed by a bench trial of the tortious interference claim.

Subsequent to his successful motion to sever the McCools’ claims, Dr. Gehret requested that the Superior Court preclude the McCools from referring in any manner, in the medical malpractice trial, to his alleged attempt to intimidate Dr. Dein. The Superi- or Court again granted Dr. Gehret’s motion in limine, citing many of the same reasons that had persuaded it to separate the trial of the two claims (e.g., potential for juror confusion, possibility of inciting an inflammatory response, and undue prejudice to Dr. Geh-ret). The Superior Court also questioned the relevance to the malpractice claim of Dr. Gehret’s attempted intimidation of the McCools’ expert witness.

Medical Malpractice Trial

On January 16, 1994, two days before the medical malpractice trial was to begin, Mrs. McCool contacted Dr. Dein. She apparently pleaded with him to reconsider his decision not to testify. According to Dr. Dein, he felt guilty and, in an act of conscience, agreed to appear on Mrs. McCool’s behalf as an expert witness. The McCools’ attorney had no time to meet with Dr. Dein and prepare him as a witness for trial.

The medical malpractice trial commenced on January 18, 1994 and lasted several days. The testimony at trial regarding the standard of care was conflicting. Dr. Dein and a second Pennsylvania-licensed physician, Dr. Marshall Klavan, testified as expert witnesses on the McCools’ behalf. Both testified that Dr. Gehret had violated the standard of care in a number of respects but most significantly by not responding earlier to Mrs. McCool at the hospital and in removing her uterus and right ovary.

Dr. Gehret testified on his own behalf. His testimony was supported by the expert *275 testimony of Dr. Moses Hochman, a Delaware-licensed physician. According to Dr. Hochman, Dr. Gehret’s treatment of Mrs. McCool met the standard of care required of physicians in Delaware.

On January 25, 1994, just before trial resumed after a break, the McCools had a brief conversation with a female New Castle County police officer. The officer stated that she had been delivered by Dr. Gehret and was there to observe the trial. The officer said she had heal’d about the trial from an acquaintance who was a member of the jury. The juror had apparently also told the officer he could not discuss the trial with her. The McCools’ attorney presented the foregoing information to the trial judge but did not make an application for any action to be taken at that time.

The medical malpractice trial continued. At the trial’s conclusion, the jury returned a verdict in Dr. Gehret’s favor. Due to the length of the trial, the Superior Court dismissed the jurors, thus preventing that jury from hearing the McCools’ second claim of tortious interference. In lieu of presenting much of the same evidence before a new jury, the McCools waived their right to a jury trial on the basis that their tortious interference claim would be a bench trial before the Superior Court judge who had presided over the medical malpractice trial.

The McCools also moved for a new trial of their medical malpractice claim on three grounds. First, the McCools alleged that the verdict was against the great weight of the evidence; second, that the mid-trial contact with the police officer evidenced juror misconduct; and, third, that the Superior Court erred in severing the trial of the tortious intei’ference claim from the trial of the medical malpractice claim.

Tortious Interference Trial Original Trial Judge Testifies

The date set for the bench trial of the tortious interference claim was April 20, 1994. On April 19, the parties were informed that the original trial judge would be unable to try the tortious interference claim due to a scheduling conflict with another matter, but that a second Superior Court judge would be available. That information was conveyed to the parties in an unreported telephone conversation.

The following is purportedly what transpired during that telephone conversation. Both parties initially objected to trying the claim before a new judge and asked for a continuance until the original trial judge would be available. At this point, the original trial judge volunteered to appear as a witness at the tortious interference trial, during a break in the other conflicting matter. Dr. Gehret’s attorney accepted the judge’s offer to testify and withdrew his objection to proceeding before the second judge. The McCools continued to object but the original trial judge denied their motion for a continuance of the tortious interference claim.

On April 20, 1994, a one-day bench trial was held on the tortious interference claim before a second Superior Court judge. Several witnesses testified. The original trial judge was called as a witness by Dr. Gehret and opined that Dr. Dein had been a “very effective witness for the plaintiff[s].” At the time the original trial judge testified, the McCools’ motion for a new trial in the medical malpractice ease was still pending.

On June 3, 1994, the second Superior Court judge who presided over the tortious interference trial issued a decision. The second trial judge found Dr. Gehret’s conduct in attempting to intimidate the plaintiffs’ expert witness to be reprehensible. Nevertheless, judgment was entered in Dr. Gehret’s favor because Dr. Dein had retracted his decision not to testify and the McCools had suffered no injury from Dr. Gehret’s efforts to intimidate. In reaching the “no injury” aspect of that decision, the second trial judge relied, in large part, on the original trial judge’s opinion that Dr. Dein had been a very effective witness.

New Trial Denied

On June 3, 1994, having heard oral argument on May 19, 1994, the original trial judge issued a decision denying the McCools’ motion for a new trial on the malpractice claim. First, the original trial judge found there was sufficient evidence to support the *276 jury’s verdict in Dr. Gehret’s favor. Second, the judge found the plaintiffs had waived their right to allege juror misconduct when their attorney failed to request the court to take action at the time and that, regardless, there was insufficient evidence to suggest improper conduct by the juror. Finally, the judge held the decision to sever the claims was justified because the causes of action were unrelated, dealt with different periods of time, and involved distinctly different evidence. The judge again concluded that trying the medical malpractice and the tortious interference claims together would have unfairly prejudiced Dr. Gehret and confused the jury.

WITNESS INTIMIDATION EFFORTS ADMISSIBLE AS SUBSTANTIVE EVIDENCE

In support of his motion to sever the malpractice claim from the tortious interference claim, Dr. Gehret’s attorney argued that “there is the tremendous danger that the jury would read into Dr. Gehret’s alleged actions [in sending the message to Dr. Dein] an implicit concession of liability in the medical malpractice claim, resulting in irreversible prejudice.” The Superior Court agreed. It granted Dr. Gehret’s motion to sever on the basis that there was “far too much opportunity for confusion among the jurors [and] for an inflammatory response from the jury.”

After the Superior Court granted the motion to sever, Dr. Gehret’s attorney petitioned the court to preclude the McCools from offering any evidence in the malpractice trial of Dr. Gehret’s efforts to interfere with Dr. Dein. The Superior Court granted this motion as well, ruling that evidence of the intimidation efforts was inadmissible because it was unduly prejudicial to Dr. Gehret. D.R.E. 403. Alternatively, the Superior Court viewed the evidence regarding Dr. Gehret’s intimidation efforts as irrelevant to the McCools’ malpractice claim against Dr. Gehret.

This Court has held that “attempts to improperly influence a witness’ testimony are fundamentally unfair and pervert the truth-seeking function of trial.” Weber v. State, Del.Supr., 457 A.2d 674, 679 n. 6 (1983). Similarly, the second trial judge condemned Dr. Gehret’s conduct:

[Dr.] Gehret’s behavior in vicariously conveying insinuating messages to [Dr.] Dein by way of [Dr.] Krell was reprehensible. Surely this conduct is not within the scope of acceptable means to defend a suit properly before the Court.

Thus, Dr. Gehret was undoubtedly correct that the jury may have reacted adversely to the evidence of his efforts to intimidate Dr. Dein.

Nevertheless, it is precisely because of the egregious nature of such conduct that the law expressly permits the jury to make adverse inferences from a party’s effort to intimidate witnesses or otherwise suppress probative evidence against him. According to McCormick:

[W]rongdoing by the party in connection with its case ... is also commonly regarded as an admission by conduct. By resorting to wrongful devices, the party is said to provide a basis for believing that he or she thinks the case is weak and not to be won by fair means_ Accordingly, the following are considered under the general category of admissions by conduct ... undue pressure by bribery, intimidation, or other means to influence a witness to testify favorably or to avoid testifying; ...

McCormick on Evidence § 265 (John W. Strong, et al. eds., 4th ed. 1992). Accord 2 John H. Wigmore, Wigmore on Evidence § 278(2) (Chadbourn Rev.1979). 7

*277 The Maryland Court of Special Appeals, confronted by facts similar to those sub judi-ce, applied the venerable legal principles described by Wigmore and McCormick. Meyer v. McDonnell, 40 Md.App. 524, 392 A.2d 1129, 1134 (1978). In Meyer, two expert witnesses were scheduled to testify against a doctor in a medical malpractice trial. The doctor telephoned associates of each witness and asked them to call the witness and communicate intimidating statements. Notwithstanding the doctor’s efforts, both witnesses ultimately testified as experts for the plaintiff. In Meyer, the court held that evidence of the doctor’s efforts at intimidation was:

admissible as tending to show his consciousness of the weakness of his case and a belief that his defense would not prevail without the aid of such improper and unfair tactics as those in which he engaged. This, in conjunction with the other evidence in the case, may lead to the further inference that appellee considers his case to be weak because he, in fact, is guilty of the negligence which appellant asserts he committed. Such inferences are, of course, merely permissible and the jury is free to either accept or reject them as it sees fit.

Id. Accord DiLeo v. Nugent, 88 Md.App. 59, 592 A.2d 1126 (1991); Miller v. Montgomery County, 64 Md.App. 202, 494 A.2d 761, cert. denied, 304 Md. 299, 498 A.2d 1185 (1985). The holding, in Meyer, that an attempt to intimidate a witness is admissible as tending to show a party’s consciousness of the weakness of his or her case, has recently been reaffirmed. Shpak v. Schertle, 97 Md.App. 207, 629 A.2d 763, cert. denied, 333 Md. 201, 634 A.2d 62 (1993). The court stated further, “Meyer does not require the underlying testimony to be otherwise relevant; rather, it provides that testimony of spoliation is, in and of itself, substantive evidence in support of the other party’s claim.” Id. 629 A.2d at 772.

Thus, a party’s efforts to interfere with a witness are not simply admissible as impeachment evidence of the tampering party’s credibility. Meyer v. McDonnell, 392 A.2d at 1134. The opposing party is entitled to introduce facts regarding efforts to intimidate a witness as substantive evidence. Although such evidence may not be sufficient to establish a prima facie case, it has probative value with respect to the tampering party’s consciousness of the weakness of his or her position on the merits and may be considered by the jury for that purpose. See 18 Del. C. § 6853. Accord Meyer v. McDonnell, 392 A.2d at 1134. Consequently, from the evidence of interference and the other evidence in this case, the jury could infer that Dr. Gehret considered his case to be weak because he was, in fact, guilty of the negligence which the McCools alleged. Meyer v. McDonnell, 392 A.2d at 1134.

The condition precedent to admitting evidence of interference with a witness is a demonstration that the acts alleged are attributable to the opposite party and that the acts alleged were done with the intent to interfere. See David B. Harrison, Annotation, Admissibility and Effect, on Issue of Party’s Credibility or Merits of his Case, of Evidence of Attempts to Intimidate or Influence Witness in Civil Action, 4 A.L.R.4th 829 (1981). In this case, the second trial judge ruled:

Having heard [Dr.] Gehret’s testimony and observed his demeanor at trial, the Court finds that [Dr.] Gehret’s characterization of his discussions with [Dr.] Krell was disingenuous. The Court concludes that the defendant’s act of calling Dr. Krell was an intentional attempt to relay a message to [Dr.] Dein and to influence him concerning his participation in Mrs. McCool’s case.

Once a sufficient showing is established, the evidence of interference is presented to the jury, along with appropriate instructions from the trial judge. The jury can then either reject or accept that evidence. If the evidence is accepted by the jury, it may support an inference that the party charged with interference is conscious of the weakness or unjust nature of his or her case. Accordingly, it may be considered as substantive evidence in support of the other party’s claim, e.g. negligence in this case.

This Court has held that excluding evidence of efforts to influence a witness’ testimony constitutes reversible error. Weber v. *278 State, Del.Supr., 457 A.2d 674 (1983). 8 Even though evidence of Dr. Gehret’s efforts to intimidate the McCools’ expert witness would have been prejudicial to his case, it was the abhorrent nature of such conduct that made it admissible. In the case sub judice, the McCools were absolutely entitled to introduce the evidence of Dr. Gehret’s attempt to intimidate Dr. Dein as substantive evidence during the trial of their medical malpractice claim. See Meyer v. McDonnell, 392 A.2d at 1134. See also McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir.1985). Cf. Weber v. State, 457 A.2d at 678-83. The Superior Court’s decision to exclude from the malpractice trial the evidence that Dr. Geh-ret attempted to interfere with the McCools’ expert witness was reversible error. Accord Weber v. State, 457 A.2d 674.

JUDGE AS WITNESS TESTIMONY INADMISSIBLE

The McCools contend that it was reversible error per se for the Superior Court judge who presided over the trial of their malpractice claim to testify for Dr. Gehret at the subsequent trial of their tortious interference claim. In support of that position, the McCools rely, in part, on Delaware Uniform Rule of Evidence 605, which provides:

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Generally, the Delaware Uniform Rules of Evidence are patterned on the Federal Rules of Evidence. Specifically, Delaware’s Rule 605 tracks its same numbered federal counterpart. Two decisions made by the drafters of the Federal Rules reflect the policy underlying Rule 605:

First, [the drafters] rejected the notion that the presiding judge is generally competent to testify. Second, they disqualified the presiding judge from testifying in any case, thus declining to follow the partial competency approach employed by other codes.

27 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6062 (1990).

In the ease sub judice, the President Judge of the Superior Court specially assigned the entire proceeding between the McCools and Dr. Gehret to the original trial judge. Super.Ct.Civ.R. 40. The President Judge entered a pre-trial order stating “the above-captioned case is specially assigned to you [the original trial judge] for all purposes until final disposition.” (emphasis added). Dr. Gehret argues that the original trial judge was, nevertheless, competent to testify for him as a witness because a second judge was “presiding at the trial” of the McCools’ tortious interference claim. That argument has been anticipated and answered by the leading commentators on the Federal Rules of Evidence.

[I]t may be argued that when Rule 605 disqualifies the judge “presiding at the trial,” the rule uses the present, not past, tense. This suggests that prior involvement as presiding judge even at the same trial is immaterial so long as that status has terminated by the time the testimony is given. However, there is no evidence that the drafters ever attributed such subtlety of meaning to the language employed in the rule. The limited authority on point suggests that a judge should be disqualified under Rule 605 [from testifying] in such a situation, even if his involvement was limited to proceedings prior to commencement of trial.

27 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6063 (1990). Consequently, those same commentators opined that:

[W]hen a judge presides over the beginning of a trial, is replaced by another judge, and is then called to testify at the same trial_ if the judge-witness made any rulings in the case that are still con *279 trolling, the subsequent testimony of that individual may destroy the appearance of impartiality since the rights of the parties have been fixed by one who has assumed a partisan affiliation.

Rule 605 should prevent a [judge] witness from testifying in such a case since accuracy and the appearance of impartiality, the central policy goals of that statute, would otherwise be jeopardized.

Id.

In this case, the original trial judge fixed the rights of the parties by, inter alia: ordering the trials of the medical malpractice claim and tortious interference claim to be severed; inducing the McCools to waive their right to a jury trial by agreeing to personally hear the tortious interference claim as a bench trial; subsequently deciding not to adjudicate the tortious interference claim; overruling the McCools’ objection to that decision; and, by denying the McCools’ motion for a continuance of the tortious interference claim.

Moreover, following the judge’s testimony, the rights of the parties were subject to further adjudication by that same judge — the original trial judge — since the McCools’ motion for a new trial remained under advisement. When the motion was ultimately decided, the original trial judge denied the request for a new trial on the malpractice claim. In denying the McCools’ motion, notwithstanding having testified on behalf of Dr. Gehret regarding the tortious interference claim, the original trial judge reaffirmed that a severance of the McCools’ claims was required to avoid prejudice to Dr. Gehret. This performance of dual roles, as judge and as witness, raises a concern about the appearance of impartiality. 9 Compare In re Estate of Waters, Del.Supr., 647 A.2d 1091 (1994).

The number of reported cases involving the testimony of a trial judge on behalf of a litigant who had appeared before that judge in a preceding trial are, understandably, few. Such a situation did occur, however, in California approximately twenty years ago. Merritt v. Reserve Ins. Co., 34 Cal.App.3d 858, 110 Cal.Rptr. 511, 527-28 (1974). The ratio decidendi and holding of the Merritt case are instructive.

In Merritt, during a second trial, the judge who had presided at the first trial appeared as an expert witness for the plaintiff. The judge testified that, in the judge’s expert opinion, a particular witness at the earlier trial had not been persuasive. The judge’s opinion supported the plaintiffs position at the second trial.

Similarly, in this case, the judge who conducted the medical malpractice trial appeared as a witness for Dr. Gehret at the subsequent trial of the tortious interference claim. The original trial judge rendered an opinion that the McCools’ expert witness, Dr. Dein, had been an effective witness. That opinion supported Dr. Gehret’s position that, even if he had interfered with Dr. Dein, he had not caused the McCools any damage. Opinion testimony by a judge is problematic: 10

Public policy considerations militate against the trial judge testifying as an expert witness in litigation involving parties who previously appeared before him. *280 Ethical mandates governing judicial conduct dictate that a judge should not create the appearance of impropriety. Opinion testimony by a judge creates the appearance of partiality on behalf of a litigant, is greatly prejudicial to the adverse party, and raises the suspicion of judicial favoritism in the prior litigation.

Phillips v. Clancy, Ct.App., 152 Ariz. 415, 733 P.2d 300, 306 (1986) (citing R. Mallen & V. Levit, Legal Malpractice § 667 (2d ed.1981)).

In Merritt, the court concluded that it was “prejudicial to one party for a judge to testify as an expert witness on behalf of the other party with respect to matters that took place before [the judge] in his judicial capacity.” Merritt v. Reserve Ins. Co., 110 Cal.Rptr. at 528. The court observed that in such an instance, “the judge appears to be throwing the weight of his position and authority behind one of two opposing litigants.” Id. The court noted that the California code of evidence, like Delaware’s Rule 605, absolutely prohibits the judge presiding at the trial from testifying as a witness. The court concluded that it was almost as prejudicial to one party for the judge to express an opinion as a witness, in a subsequent proceeding between the same litigants, about events that occurred in an earlier trial over which that judge had presided.

The record reflects that the Superior Court judge’s testimony in the tortious interference trial irrevocably compromised the integrity of the judicial process in the entire proceeding between Dr. Gehret and the McCools. See Joachim v. Chambers, Tex. Supr., 815 S.W.2d 234, 238-39 (1991). First, the appearance of impartiality was undermined by the judge’s testimony favoring one of the litigants, Dr. Gehret. Second, the adversarial process was impaired when the McCools’ attorney was placed in the untenable position of having to cross-examine the original trial judge during the tortious interference trial, while his clients’ motion for a new trial of the malpractice claim remained pending before that very jurist. 11 Third, following the judge’s testimony, the McCools (and the second trial judge) were placed in a difficult position because the success of their tortious interference claim depended, in large part, upon the second trial judge discrediting his colleague’s assessment of Dr. Dein’s effectiveness as a witness. In fact, the second trial judge’s ultimate conclusion was that “clearly no injury occurred since, in the opinion of the presiding [original trial] judge, Dr. Deiris testimony was very effective.”

Delaware Rule of Evidence 605 precludes the presiding judge from testifying “in that trial.” This case exemplifies the problems that can arise when a judge has presided over some facet of the proceedings in a case, is subsequently disqualified or leaves the bench for some other reason, and is then called to testify in the same proceeding. Accordingly, we agree with the logic of the learned commentators’ analysis that Rule 605 applies to such a situation. Otherwise, the undisputed policy goals of Rule 605; i.e., accurate fact-finding and the appearance of impartiality, are significantly undermined by the two roles the presiding judge occupies in what is fundamentally one continuous proceeding. See 27 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6063 (1990). 12

*281 The record reflects that the testimony on Dr. Gehret’s behalf by the judge specially assigned to preside at this entire proceeding was contrary to the purpose and policy of Rule 605. We hold that, under the facts of this case, the absolute prohibition of Rule 605 applied. The Superior Court judge’s testimony on Dr. Gehret’s behalf during one “severed” phase of a proceeding that had been, and would thereafter continue to be, presided over by that same judge was reversible error per se. D.R.E. 605; Merritt v. Reserve Ins. Co., 34 Cal.App.3d 858,