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Moses v. Drake

Superior Court of Delaware, Kent

May 13, 2014

TRISHA MOSES and SA'RELL MOSES, a Minor, by and through her Next Friend, Trisha Moses, Plaintiffs,
AARON DRAKE, Defendant.

Submitted: May 2, 2014

Upon Defendant's Motion to Dismiss. Granted.

William D. Fletcher, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorneys for Plaintiffs.

Arthur D. Kuhl, Esquire of Reger Rizzo & Darnall, LLP, Wilmington, Delaware; attorney for Defendant.



Before the Court is Defendant's motion to dismiss Plaintiffs' complaint. The Court has carefully considered the parties' submissions and the applicable legal authority. For the reasons set forth below, Defendant's motion shall be treated as a motion for summary judgment, and is GRANTED in its entirety.


On April 6, 2011, Plaintiff Trisha Moses (hereinafter "Trisha") was involved in a rear-end vehicle collision with Defendant Aaron Drake (hereinafter "Defendant") while Trisha was stopped at the intersection of U.S. Route 13 and the Dover Mall's north exit in Dover. Trisha was twenty-six weeks pregnant at the time of the accident.

Trisha was admitted to Kent General Hospital on the day of accident for complaints of lower back pain and for monitoring of her pregnancy. According to Trisha's complaint, Trisha was initially hospitalized on April 6 and 7, 2011 immediately following the accident, then was treated on April 18 and again on April 27, 2011 for pregnancy-related complications. On May 15, 2011, Trisha prematurely gave birth to Plaintiff Sa'Rell Moses (hereinafter "S.M." and together with Trisha, collectively "Plaintiffs").

Trisha's complaint alleges that Defendant's negligence proximately caused Trisha's injuries, pregnancy complications and the premature birth of S.M. The complaint also alleges that S.M. was born with multiple physical and mental deficiencies and dysfunctions as a result of the accident.

On January 31, 2014, Plaintiffs identified Dr. Stephen Ogden (hereinafter "Dr. Ogden") as their medical expert for trial. Dr. Ogden treated Trisha following the accident. Dr. Ogden's report, dated January 15, 2014, states in pertinent part: "It is feasible that the complaints [Trisha] presented with are causally related to her motor vehicle accident and to the best of knowledge were not related to a previous injury or illness." Dr. Ogden's report does not address any alleged medical condition of Trisha or S.M. other than Trisha's lower back pain.

On April 16, 2014, Defendant filed the instant motion, styled as a "motion to dismiss" without any reference to a particular rule of the Superior Court Rules of Civil Procedure that provides a basis for the motion. Defendant references the "raw medical records" produced during the course of discovery as well as Dr. Ogden's expert report. Defendant argues that these documents do not support the specific allegations in Plaintiffs' complaint regarding induced premature birth or S.M.'s alleged developmental disabilities. Defendant contends that all claims related to any prenatal injuries must be dismissed due to lack of any expert medical opinion, and further argues that Dr. Ogden's report does not provide a sufficient basis for his expert report.

Defendant focuses on Dr. Ogden's use of the term "feasible, " and contends that because the dictionary definition of "feasible" is synonymous with "possible, " this does not rise to level of "reasonable probability" needed for expert medical testimony. Plaintiffs do not oppose dismissal of all claims pertaining to S.M., because Trisha has chosen to no longer pursue any claims on S.M.'s behalf. Plaintiffs oppose dismissal of Trisha's claims for physical injuries sustained in the accident and for the hospitalization and monitoring of her pregnancy condition. Plaintiffs also seek damages for Trisha's mental suffering, distress and anxiety caused by her concerns over her pregnancy complications, and oppose dismissal of those claims as well.

Plaintiffs contend that the medical records of Trisha's hospitalization supports her claims pertaining to her pregnancy monitoring and related stress. Plaintiffs also argue that Dr. Ogden's use of "feasible" provides a sufficient basis for his opinion, and contends that simply because "feasible" is synonymous with "possible" does not mean that Dr. Ogden intended to state that it was only possible that Trisha's back pain was caused by the accident. Plaintiffs argue that a medical expert's failure to use "magic words" does not render the opinion inadmissible. Plaintiffs have also provided a supplemental report by Dr. Ogden dated April 25, 2014 in which Dr. ...

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