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Riffel v. Sarter

Superior Court of Delaware, New Castle

May 1, 2015

MARY M. RIFFEL, Individually and as Administratrix of the Estate of RONALD R. RIFFEL, Plaintiff,
v.
BRIAN H. SARTER, M.D., CARDIOLOGY PHYSICIANS, P.A. MARK WHITAKER, M.D., AMERICAN RADIOLOGY SERVICES OF DELAWARE, INC., and AMERICAN RADIOLOGY SERVICES, LLC, AMERICAN RADIOLOGY ASSOCIATES, P.A., and AMERICAN RADIOLOGY ASSOCIATES of DELAWARE, P.A., Defendants.

Submitted: April 13, 2015

Upon Plaintiff’s Motion to Strike and to Oppose Defendants’ Application for Enlargement of Time DENIED.

Upon Defendants’ Application for Enlargement of Time GRANTED.

David G. Culley, Esquire (argued), Dennis J. Menton, Esquire, Tybout, Redfearn & Pell, Attorneys for Plaintiff Mary M. Riffel, Individually and as Administratrix of the Estate of Ronald R. Riffel.

Richard Galperin, Esquire, Courtney R. Hamilton, Esquire (argued), Morris James LLP, Attorneys for Defendants Mark Whitaker, M.D., American Radiology Services of Delaware, Inc., American Radiology Services, LLC., American Radiology Associates, P.A., and American Radiology Associates of Delaware, P.A.

Bradley J. Goewert, Esquire, Thomas J. Marcoz, Jr., Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Attorneys for Defendants Brian H. Sarter, M.D. and Cardiology Physicians, P.A.

ORDER

Ferris W. Wharton, J.

This 1st day of May, 2015, upon consideration of Defendants American Radiology Services of Delaware, Inc. and American Radiology Services, LLC's letter application for extension of time, [1] Plaintiff's Motion to Strike and to Oppose Defendant's Application for Enlargement of Time, Defendants Mark Whitaker, M.D., American Radiology Services, LLC, and American Radiology Associates, P.A.'s Response and oral argument, it appears to the Court that:

1. Plaintiff Mary Riffel ("Riffel") initiated this action on July 31, 2013 against certain health care providers as a result her late husband's death from lung cancer.[2] Riffel alleges generally that all of the Defendants failed to properly inform Mr. Riffel of findings suggestive of lung cancer on an October 26, 2010 chest X-ray.[3]
2. On August 7, 2014, this Court entered a Trial Scheduling Order ("TSO").[4] The TSO established a trial date of June 15, 2015.[5] The dispositive motions deadline was set for March 20, 2015[6] as was the date by which alternative dispute resolution ("ADR") was to be conducted.[7]
3. On March 19, 2015, counsel for defendants Brian H. Sarter, M.D. and Cardiology Associates, P.A. (the "Cardiology Defendants") emailed Plaintiff's attorney and counsel for the remaining defendants (the "Radiology Defendants") noting that the dispositive motions deadline was the next day and suggesting an extension of that deadline by stipulation.[8] After an exchange of emails, Plaintiff's counsel objected to moving the deadline for dispositive motions.[9] No stipulation was ever filed and the next day the Cardiology Defendants filed a timely Motion for Summary Judgment raising statute of limitations issues.[10]The Radiology Defendants did not file any dispositive motions by the deadline. Instead, On March 24, 2015, Defendants Mark Whitaker, M.D., American Radiological Services, LLC and American Radiological Associates, P.A. filed a "Joinder" in the Cardiology Defendants summary judgment motion.[11]
4. As mentioned, the TSO ordered the parties to complete ADR by March 20th.[12] For reasons that are not clear to the Court, the parties scheduled a mediation conference for March 24th.[13] Without leave of the Court to by-pass ADR, counsel for the Radiology Defendants informed the mediator and the remaining parties that the Radiology Defendants would not be participating in the mediation conference.[14]
5. While the mediation conference was not successful, counsel for Plaintiff reported at oral argument that the conference laid the groundwork for a settlement agreement between Plaintiff and the Cardiology Defendants.[15] Accordingly the Cardiology Defendants have withdrawn their Motion for Summary Judgment.[16] Whether the "Joinder' survives the withdrawal is at issue here.
6. On March 26th, counsel for the Radiology Defendants filed a letter application with the Court seeking an extension of the dispositive motion deadline in order to file a separate summary judgment motion as to Defendants American Radiology Services of Delaware, Inc. and American Radiology Services, LLC.[17] The goal of the contemplated summary judgment motion is to "eliminate a party that is not relevant to the litigation (their only role was to provide billing services, and did not provide or otherwise oversee any of the medical care that is at issue)."[18] Plaintiff has moved to strike the "Joinder" as to the Cardiology Defendants' now withdrawn ...

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