CANDY VAUGHN, as administratrix of the ESTATE OF JAMES VAUGHN, CANDY VAUGHN as wife of James Vaughn, and CANDY VAUGHN in her own right, Plaintiffs,
JEFFREY I. JACKERSON, D.O. and MILFORD MEMORIAL HOSPITAL and ADAM S. BROWNSTEIN, M.D. and MILFORD MEDICAL ASSOCIATES, PA and RONALD M. LIEBERMAN, D.O. and DELAWARE SPINE INSTITUTE and KENT DIANOSTIC RADIOLOGY ASSOCIATES, PA, Defendants.
Submitted: January 9, 2015
Upon Defendants' Petition for Leave to Appeal from Interlocutory Order- DENIED
Upon Defendants' Motion for Extension of Time to File an Application for Certification of Interlocutory Appeal — DENIED AS MOOT
The Honorable Andrea L. Rocanelli
Defendants have made application pursuant to Rule 42 of the Rules of the Supreme Court of the State of Delaware for an order certifying an appeal from the interlocutory order of this Court dated November 24, 2014 ("November 24 Order").
Plaintiffs filed this medical neg ligence action on July 11, 2013 alleging medical negligence of all Defendants with respect to the medical treatment of James Vaughn. On September 10, 2013, Defendants filed dispositive motions seeking summary judgment on the grounds that the statue of limitations for a medical negligence action had expired before suit was filed. On December 18, 2013, the Court denied Defendants' motion for summary judgment, without prejudice, to allow for discovery.
In September 2014, after Plaintiff Candy Vaughn was deposed, Defendants again filed a motion for summary judgment on the grounds that suit had been filed after the statute of limitations had expired. The Court heard oral argument on November 19, 2014 and issued the November 24 Order denying Defendants' motion.
On December 10, 2014, Defendants filed the pending application for certification of interlocutory appeal to the Delaware Supreme Court. The Court requested Plaintiffs' response no later than January 5, 2015. Then, on December 17, 2014, Defendants filed the pending motion for an extension of time to file its application for certification of interlocutory appeal and to deem the tardy December 10 application as timely filed. The Court requested Plaintiffs' response to both motions no later than January 12, 2015. Plaintiffs filed its response on January 9, 2015, opposing Defendants' motions.
Upon consideration of the pending motions, the Court finds as follows:
(1) Supreme Court Rule 42 governs interlocutory appeals. Subsection (c) outlines the procedural process to certify an interlocutory appeal. Specifically, pursuant to Rule 42(c)(i), applications for certification of interlocutory appeal must be filed with the trial court "within 10 days of the entry of the order from which appeal is sought or such longer time as the trial court, in its discretion, may order for good cause shown."
Defendants' application for certification does not satisfy the time provisions mandated by Rule 42(c)(i). Defendants seek to appeal the November 24 Order. Accordingly, Defendants' application for certification was due, absent good cause, on December 4, 2014. Defendants filed the pending application for certification on December 10, 2014.
Seven days later, on December 17, 2014, Defendants filed the pending motion for an extension of time to file its application for certification of interlocutory appeal and to deem its tardy December 10 application as timely filed. Defendants explain use of the wrong court rules to calculate the filing deadline but maintain that the delay is minimal and does not prejudice Plaintiffs given the Court-issued deadline to respond. Plaintiffs oppose Defendants' motion for an extension of time. Defendants have not demonstrated good cause for the delay in filing.
(2) Notwithstanding the issues of timeliness of the appeal, the Court will not certify an interlocutory appeal unless the underlying decision determines a substantial issue, establishes a legal right, and meets one or more of the criteria set forth in Rule 42(b)(i)-(v).
Defendants request certification pursuant to Rule 42(b)(i), (iii), and (v). Defendants argue that the November 24 Order presents an unsettled question of law on the statutory interpretation of 18 Del. C. § 6856(1). Alternatively, Defendants present the contrary argument that the November 24 Order conflicts with the established interpretation of 18 Del. C. & ...