Submitted: December 12, 2014
Upon Defendants' Second Motion for Summary Judgement.
Charles E. Whitehurst, Jr., Esquire of Young & Malmberg, P.A., Dover, Delaware; attorney for Plaintiff.
Michael J. Logullo, Esquire of Heckler & Frabizzio, Wilmington, Delaware; attorney for Defendants.
Lola Woodall (hereinafter "Plaintiff") alleges that Dover Downs, Inc. (hereinafter "Defendant") was negligent in "several aspects [such as] protect[ing] individuals on their property from danger, fail[ing] to maintain proper security, and fail[ing] to train its employees to protect customers such as Plaintiff." Plaintiff's original complaint alleged that she was thrown to the floor by an assumed patron of Defendant's, Julius Johnson, while on the premises of Dover Downs on July 20, 2008. Plaintiff filed suit on July 29, 2010 for allegedly sustaining injuries as a business invitee at Dover Downs. This case enters its fifth year of litigation and discovery is yet to be completed.
On November 6, 2012, the Defendant filed its first Motion for Summary Judgment due to (1) Plaintiff's lack of a liability expert and (2) Plaintiff's failure to produce any report or opinion from a medical expert. According to the Defense, the parties stipulated to an extension to allow Plaintiff to find and retain a liability expert, and the Defense withdrew its motion. The new scheduling order required an identification of Plaintiff's expert by September 16, 2013.
After that time, the Plaintiff still had difficulty in retaining a liability expert, and the new deadline for Plaintiff to produce expert reports was extended to September 3, 2014. On September 22, 2014, the Defendant filed its second motion for summary judgment pursuant to Delaware Superior Court Rule 56. As of January 28, 2015, the Plaintiff retained its liability expert but failed to submit an expert report, which has yet to be filed.
FACTS AND PROCEDURE
The Defense's second motion for s um mar y judgment is decided after the parties had oral argument before this Court. During oral argument, the Defense described the relationship between the parties as contentious based on Plaintiff's inability to adhere to deadlines provided by the Court. During oral argument, the parties recited the case's history. On April 24, 2012, the Court issued a Trial Scheduling Order requesting that Plaintiff identify its expert by October 28, 2012. Plaintiff stated in its interrogatory it planned to retain a liability expert,  but failed to do so by the deadline. The Defense then made its first motion for summary judgment. Plaintiff then contacted Defense counsel and the two parties reached an agreement resulting in Defense counsel withdrawing its motion, and requiring Plaintiff to identify its expert by September 16, 2013. According to Defense counsel, the parties agreed to continue the trial to allow Plaintiff's counsel to provide discovery to the Defense in an effort to determine whether proceeding with the trial would occur. The purpose of this continuance was to give Plaintiff time to retain a liability expert.
On January 10, 2014, Defense Counsel sent a letter to the Court informing it of Plaintiff's failure to retain an expert witness, and that the parties mutually agreed to request a new trial date and scheduling order. The Plaintiff did not file a response to the Defense's first motion for summary judgment, but did file a response to the second motion for summary judgment. This was filed a day late on October 10, as timely filing would have been October 9, 2014.
In its response, Plaintiff cites to the alleged facts of the case, arguing that it is possible that "this case may not even require an expert." Discovery was issued to Defendant on December 6, 2013 and was not answered until June 27, 2014. How ever, Plaintiff conceded that at the time it did not have a liability witness due to the illness of Plaintiff's attorney of record at the time. During oral argument, the Defense relied on Robinson in arguing that th e Plaintiff must h ave a liability expert in this case . The Supreme Court of Delaware held in Robinson that the standard of care for a security guard could only be established through a liability expert. The Plaintiff failed to produce any argument based on Delaware precedent to rebut the necessity for a liability expert. The Court ordered the Plaintiff secure a liability expert in one month. The Plaintiff identified a liability expert and provided a curriculum vitae within that month, but failed to submit the expert's report. The Plaintiff filed a motion to extend time on January 10, 2015. The Court denied the motion.
Lastly, the Defense asserts that the Court should grant the motion for summary judgment because the Plaintiff has had multiple opportunities to retain a liability expert, and that the multiple delays will lead to stale discovery. The Defense relies on the balancing test in D ...