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Bumgarner v. Verizon Delaware, LLC

Superior Court of Delaware, Kent

January 14, 2014

AYE BUMGARNER and PAMELA BUMGARNER, Plaintiffs,
v.
VERIZON DELAWARE, LLC and JAMES E. BOWDEN, Defendants.

Submitted: January 10, 2014

Upon Defendants' Motion to Continue Trial. Granted.

Douglas B. Catts, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Plaintiffs.

R. Stokes Nolte, Esquire of Reilly Janiczek & McDevitt, P.C., Wilmington, Delaware; attorney for Defendants.

ORDER

William L. Witham, Jr. Resident Judge

ISSUE

The Court heard arguments of counsel on Defendants' Motion to Continue Trial on the basis that two fact witnesses are unable to testify at trial and counsel has been unable to agree on deposition dates.

BACKGROUND

The trial in this negligence action is currently scheduled to begin on February 10, 2014. Defendants do not contest liability, but challenge whether a rear-end collision which occurred on April 20, 2010 was the proximate cause of the Plaintiffs' injuries. On December 16, 2013 Plaintiffs filed ten motions in limine to exclude certain evidence or references to certain evidence. In the sixth motion in limine, Plaintiffs move to exclude a statement contained in the medical records of Dr. Rachel Smith (hereinafter "Dr. Smith"), the physician who treated Plaintiff Pamela Bumgarner (hereinafter "Pamela") soon after the accident. The parties dispute whether this statement is merely a factual record or a medical opinion that would require Dr. Smith to testify as an expert. In the tenth motion in limine, Plaintiffs move to exclude any reference to visits Pamela made to her family doctor, Dr. Sharrad Patel (hereinafter "Dr. Patel") regarding alleged neck and back pain. As with Dr. Smith, Defendants characterize Dr. Patel as a fact witness.

Plaintiffs' sixth motion in limine indicates that Plaintiffs have no intention to call Dr. Smith as a witness at trial, and states that Defendants only intend to call Dr. Smith as a fact witness. Plaintiffs' tenth motion in limine also indicates no intention on the part of Plaintiffs to call Dr. Patel as a witness, and states "it is anticipated that Defendants will not call Dr. Patel to testify."

In the Pretrial Stipulation filed by the parties on January 7, 2014, in the list "of all witnesses to be called at trial, " Plaintiffs list both Dr. Patel and Dr. Smith as expert witnesses to testify on the Plaintiffs' behalf. Defendants list Dr. Smith and Dr. Patel as fact witnesses to testify on the Defendants' behalf.

Despite this, Defendants received confirmation from Plaintiffs that Plaintiffs did not intend to call either Dr. Smith or Dr. Patel at trial. It appears Defendants had taken no previous steps of their own to secure either doctor's attendance at the trial. Upon attempting to secure the doctors' attendance following this revelation, Defendants were informed that neither doctor was available to testify at trial.

Defendants then attempted to schedule deposition dates for Dr. Smith and Dr. Patel before the February 10 trial date. Defendants presented Plaintiffs with two deposition dates for Dr. Smith and one deposition date for Dr. Patel; Defendants were advised that counsel for Plaintiffs was unavailable on all three proposed dates.[1]Based on the failure of the parties to agree upon pretrial deposition dates for the two doctors, Defendants filed the instant Motion to Continue Trial on January 8, 2014. The Pretrial Conference in this case was scheduled for Monday, January 13–less than a week from when Defendants filed the instant motion. Plaintiffs oppose the Motion on the grounds that ...


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