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Wing v. Bichaco

Superior Court of Delaware, New Castle

October 30, 2014

BENJAMIN WING, Plaintiff,
v.
JOSE BICHACO and SPALLCO ENTERPRISES, INC., Defendants.

Submitted: July 23, 2014

TRIAL BY JURY OF TWELVE DEMANDED

Benjamin Wing, Howard Young Correctional, Pro se Plaintiff

George T. Lees, Esquire, Kaan Ekiner, Esquire, Rawle & Henderson, LLP, Attorneys for Defendants.

ORDER

WILLIAM C. CARPENTER, JR.

Upon consideration of Defendants' Motion for Summary Judgment, it appears to the Court that:

1. Plaintiff brought this personal injury action in January 2012, alleging injuries arising out of an automobile accident that occurred on June 18, 2010. On May 30, 2012, this Court issued a trial scheduling order giving Plaintiff until October 26, 2012 to produce Plaintiff's expert reports. Plaintiff failed to meet this deadline.

2. In January 2013, Plaintiff's counsel withdrew from the case. In allowing Plaintiff to proceed pro se, the Court cautioned that Plaintiff would be held to the same standard as counsel and that failure to meet deadlines would be inexcusable.

3. On June 19, 2013, the Court issued a new trial scheduling order setting a new trial date of September 8, 2014. This order gave Plaintiff until December 20, 2013 to produce an expert. On December 2, 2013 Defendants' counsel sent a letter to Plaintiff requesting a response to their discovery requests filed in January 2013. Defense counsel's letter further reminded Plaintiff of the impending expert report deadline of December 20, 2013. Again, Plaintiff failed to meet this deadline.

4. On December 26, 2013 Defendants filed a Motion to Compel Plaintiff to respond to their discovery requests and to identify any expert to be used by Plaintiff in this litigation. The Court granted the Motion to Compel on January 29, 2014, giving Plaintiff until February 10, 2014 to produce the reports of any experts and provide a date for the discovery deposition of such experts. Plaintiff failed to meet this deadline as well.

5. Defendant moved to dismiss on March 25, 2014, arguing that Plaintiff failed to produce discovery responses, expert reports, or schedule discovery depositions pursuant to the Court's December 26, 2013 order and his failure to obey the order should be sanctioned by dismissal under Superior Court Civil Rules 37(b)(2)(C) and Rule 41(b). On May 12, 2014, at oral argument on Defendants' Motion, the Court held that Plaintiff would be limited to the treating physicians he identified during the hearing in establishing his case because he did not comply with the time frame previously ordered by the Court. Also, the Court directed Defendants to subpoena and review all of Plaintiffs' medical records and submit a status report to the Court.

6. On May 23, 2014, Defendants filed a status update informing the Court that they were content with the medical records provided by Plaintiff's former counsel. Defendants also informed the Court that they had not received any updated records since Plaintiff became pro se, placing Plaintiff in contempt of the Court's January 29, 2014 order compelling him to respond to Defendants' Supplemental Request for Production of Documents No. 2, served on January 11, 2013. In their status update, Defendants offered to obtain the records sought in response to their Request for Production of Documents No. 2, if Plaintiff identified the facilities where repair estimates were obtained after the July 3, 2010 accident.

7. On May 28, 2014, the Court wrote to Plaintiff again ordering him to produce updated medical records from the date he proceeded pro se, and estimates of the repairs made to his vehicle as a result of the accident by June 30, 2014. The Court informed Plaintiff that if he did not provide updated medical records by June 30, 2014, he would be limited to the medical records previously provided to the Defendants.

8. On June 8, 2014, Plaintiff responded to the Court advising the Court that the Defendants had all of his medical records. Plaintiff further stated in his letter that Defendants should contact his State Farm agent regarding estimates and repairs following the July 3, 2010 accident. As a result of this information ...


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