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.
WILLIAM L. WITHAM, JR. RESIDENT JUDGE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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. ...