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Moses v. Drake

Superior Court of Delaware, Kent

June 10, 2014

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

Submitted: June 2, 2014

Upon Plaintiffs' Motion for Reargument.

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 Plaintiffs' motion for reargument following the Court's May 13, 2014 Order granting Defendant's motion for summary judgment and dismissing all of Plaintiffs' claims. The only issue raised in the instant motion is whether the Court correctly determined that the report of Plaintiffs' expert witness was insufficient to create a genuine issue of material fact as to whether Plaintiff Trisha Moses suffered back pain as a result of Defendant's negligence.


On April 6, 2011, Plaintiff Trisha Moses (hereinafter "Trisha") was involved in a rear-end vehicle collision with Defendant Aaron Drake (hereinafter "Defendant") in Dover. Trisha was twenty-six weeks pregnant at the time of the accident.

Trisha was hospitalized on April 6 and 7 for complaints of lower back pain and for monitoring of her pregnancy. According to Plaintiffs' complaint, Trisha was hospitalized again on April 18 and April 27 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. Under the original Scheduling Order issued in this case, the cutoff date for Plaintiffs' expert discovery was set as April 30, 2014 and the date for discovery completion was set as October 8, 2014; a specific cutoff date for submission of Plaintiffs' medical expert report was scheduled for December 31, 2013. Pursuant to a joint stipulation, the Scheduling Order was subsequently modified to change the cutoff date for Plaintiffs' expert report to January 31, 2014; the date for Plaintiffs' expert discovery and discovery completion remained unchanged.

On January 31, 2014 (the cutoff date for Plaintiffs' expert report), Plaintiffs identified Dr. Stephen Ogden (hereinafter "Dr. Ogden") as their medical expert. Dr. Ogden treated Trisha for complaints of back pain following the accident. Dr. Ogden's expert report, dated January 15, 2014, describes the treatment Dr. Ogden provided Trisha and states in pertinent part: "[i]t 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." The January 15 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 a "motion to dismiss" all of Plaintiffs' claims; the Court construed the motion as a motion for summary judgment because of the references to and incorporation of documents outside the pleadings. As to Trisha's claim pertaining to her back pain, Defendant focused on Dr. Ogden's use of the term "feasible, " and contended that because the dictionary definition of "feasible" is synonymous with "possible, " this did not rise to level of "reasonable probability" needed for expert medical testimony. Plaintiffs responded 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 further argued that a medical expert's failure to use "magic words" does not render the opinion inadmissible.

Plaintiffs attached to their response to Defendant's motion a supplemental report by Dr. Ogden dated April 25, 2014–notably, after Defendant's motion was filed. This supplemental report reads in its entirety:

To clarify my letter of January 15, 2014, since to the best of my knowledge, Trisha Moses' complaints of back pain were not related to a previous illness or injury, it is more likely than not that these complaints of back pain were causally related to her motor vehicle accident of April 6, 2011.

By Order dated May 13, 201, 4 this Court granted summary judgment on all of Plaintiffs' claims.[1] Relying on the Delaware Supreme Court's decision in O'Riley v. Rogers, [2] this Court found that Dr. Ogden's opinion that it was merely "feasible" that the accident caused Trisha's back pain fell far short of the requirement that an expert's opinion be based on a reasonable medical probability or reasonable medical certainty.[3] Because Dr. Ogden's expert report was insufficient as a matter of law, and because the cutoff for Plaintiffs' expert report had already passed, the Court granted summary judgment on Trisha's claim to recover for her back pain.[4]

On May 20, 2014, Plaintiffs timely filed the instant motion for reargument solely on Trisha's back pain claim. Plaintiffs point out that neither O'Riley nor any other source of Delaware law actually defines "reasonable medical probability, " and argue that Dr. Ogden's April 25 supplemental report (which Plaintiffs refer to as a "statement") establishes a sufficient basis for his opinion beyond a mere possibility. Plaintiffs contend that Dr. Ogden's April 25 report meets the definition of "reasonable medical probability" as provided by Black's Law Dictionary, and claim that they are entitled to reargument because "Defendant failed to provide a definition of reasonable medical probability and explain how that definition is not met by the doctor's statement of April 25, 2014." Plaintiffs make no mention of Dr. Ogden's original report from January 15.

Plaintiffs have submitted yet another supplemental report from Dr. Ogden in support of the instant motion. Dated May 14, 2014 (the day after this Court granted Defendant's motion for summary judgment), the new report reads:

To further clarify my letter of January 15, 2014, since to the best of my knowledge, Trisha Moses' complaints of back pain were not related to a previous illness or injury, based upon reasonable, medical probability, these complaints of back pain were causally related to her motor vehicle accident of April 6, 2011.

Defendant responds that his motion for summary judgment only concerned Dr. Ogden's January 15 report stating that it was "feasible" that Trisha's injuries were causally related to the accident. Defendant points out that the deadline for expert reports had expired when Dr. Ogden submitted his April 25 and May 14 supplemental reports, and Plaintiffs had not sought any further extension of the report deadline so that those supplemental reports could be filed. Defendant contends that the only report this Court needs to consider is the January 15 report, as it was the only one timely filed.


A motion for reargument filed pursuant to Superior Court Civil Rule 59(e) will be only be granted if "the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision."[5] Motions for reargument should not be used to rehash arguments already decided by the Court, or to present new arguments that were not previously raised.[6] Using a motion for reargument for either of these improper purposes "frustrate[s] the efficient use of judicial resources, place[s] the opposing party in an unfair position, and stymie[s] 'the orderly process of reaching closure on the issues."[7] In order for the motion to be granted, the movant must "demonstrate newly discovered evidence, a change in the law, or manifest injustice."[8]


Trial courts are not required to allow a plaintiff to supplement a previously submitted expert report after the expert report cutoff has expired if there is no good cause to permit the untimely filing.[9] Good cause may be found where the movant has been generally diligent, the need for more time was neither foreseeable nor the fault of the movant, and refusing to modify the scheduling order "would create a risk of substantial unfairness to that party."[10]

Delaware case law requires that when an expert offers a medical opinion, "it should be stated in terms of 'a reasonable medical probability' or 'a reasonable medical certainty.'"[11] An expert medical opinion cannot be based on mere speculation or conjecture.[12] Following this Court's May 13 Order, the Supreme Court recently reaffirmed this rule when it found that "likely, " even if replaced with "probably, " fell short of the reasonable medical probability standard.[13]

The terms "reasonable medical probability" or "reasonable medical certainty" have never been fully defined by Delaware law. Black's Law Dictionary defines "reasonable medical probability" as:

In proving the cause of an injury, a standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought.[14]

By contrast, "feasible" is defined as "probable; likely" and is synonymous with "possible."[15] In their motion for reargument, Plaintiffs cite to several Delaware cases that stand for the proposition that experts may use other terms such as "more likely than not" in describing their opinion without explicitly stating "reasonable medical probability, so long as it appears that the expert's testimony, viewed as a whole, is based upon a reasonable medical probability.[16]

Plaintiffs' motion makes no mention of Dr. Ogden's January 15 report, yet that is the only expert report that the Court could consider in deciding Defendant's motion because it was the only report that was timely filed before the cutoff date for Plaintiffs' expert report. The specific carving out of a cutoff date for Plaintiffs' expert reports, when there are separate dates for expert discovery and discovery completion, illustrates that Plaintiffs cannot simply submit what they characterize as "statements"–which appear to the Court to clearly be supplemental expert reports, as they attempt to refine and cure Dr. Ogden's original report–without good cause after the cutoff date for such reports, which was January 31, 2014. Further, no good cause exists for the April 25 and May 14 supplemental reports. More than three months had passed between Dr. Ogden's initial report and Plaintiffs' submission of the April 25 report, which was only filed after Defendant's motion for summary judgment. Likewise, the May 14 report was only filed after the issuance of this Court's May 13 Order granting summary judgment.

While Dr. Ogden did not necessarily have to state "reasonable medical probability" in his January 15 report, he did have to provide something in the report to show that his opinion was based upon a reasonable medical probability. All that the January 15 report states is that it is merely "feasible" that Trisha's complaints of back pain were caused by the 2011 accident. Based on the definitions of "feasible" and "reasonable medical probability" discussed supra, "feasible" means little more than "possible, " and falls short of the "reasonable medical probability" standard. This renders Dr. Ogden's expert opinion in his January 15 report legally insufficient and his opinion on causation inadmissible, and does not justify proceeding with the costly discovery process as Plaintiffs are now prohibited from submitting any other expert reports under the scheduling order.

Upon the filing of Dr. Ogden's January 15 report, Plaintiffs still had two weeks to attempt the cure the defective report and submit a supplemental report clarifying Dr. Ogden's opinion. Plaintiffs failed to do so, and have failed to argue that there was good cause justifying the submission of the untimely April 25 and May 14 supplemental reports. The circumstances of the filings of these reports permit the Court to draw the inference that these reports were nothing more than reactionary filings to the Defendant's motion and the Court's ruling. To consider these filings now would render the scheduling order–and the well-established practice of requiring a plaintiff to submit expert reports by a specific date early on the discovery process–meaningless. Further, to hold otherwise would prejudice a defendant's ability to defend their case, as they would be left guessing as to what the basis of an expert's opinion is up until the date of the expert's deposition, or even up until trial.

Thus, the Court will not and cannot consider Dr. Ogden's April 25 and May 14 supplemental reports. As already stated, Dr. Ogden's January 15 report fails to establish that the doctor's opinion regarding causation is based upon a reasonable medical probability. As the Court previously concluded in its May 13 Order, this did not create a genuine dispute of material fact regarding causation, and warranted summary judgment.


Based on the foregoing, Plaintiffs have failed to show that the Court overlooked controlling legal precedent or misapprehended the law or facts such that the outcome of Defendant's motion for summary judgment would change. Therefore, Plaintiffs' motion for reargument is DENIED.


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