Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Winn v. Clements

Superior Court of Delaware

February 27, 2017

K'Lynne A. Winn
v.
Charles O. Clements

          Lawrence Spiller Kimmel, Esq., Brian S. Legum, Esq., Kimmel, Carter, Roman, Peltz & O'Neill, P.A.

          Arthur D. Kuhl, Esq.

         Dear Counsel:

         Trial in this case is scheduled for March 13, 2017. Defendant asks this Court to dismiss the case because Plaintiff did not submit an expert report. For the reasons stated below, Defendant's Motion for Summary Judgment Due to Lack of Medical Expert Opinion is DENIED. Defendant's reliance and request to dismiss under Hill v. DuShuttle[1] not only unduly broadens the scope of that decision, but the rationale for dismissal runs counter to its holding.

         Relevant Factual and Procedural Background

         This is a personal injury claim involving two motor vehicle accidents that occurred on February 9, 2013 and February 11, 2013.[2] The Court issued a trial scheduling order in this case on July 15, 2016. The deadline for "Plaintiffs expert reports (or Rule 26(b)(4) disclosures)" was August 31, 2016. On August 2, 2016, Plaintiffs counsel emailed Defendant's counsel in relevant part as follows:

I am not sure if you received a 26(b) expert disclosure from me yet in this case. If not, see below:
Dr. Conrad King will testify on behalf of K'Lynne Winn and the injuries she sustained in a motor vehicle accident ["MVA"] on 2/9/13.
Dr. King will testify consistent with his medical records that pre-date and post-date the 2/9/13 MVA.
Dr. King will testify that Ms. Winn sustained injuries to her neck, low back, and her body went into contractions (she was pregnant at the time of the accident) as a result of the 2/9/13 MVA.
Dr. King will testify that the medical treatment from 2/9/13 through 2015 has all been reasonable, necessary, and causally related to the 2/9/13 MVA.
Dr. King will testify that he is familiar with the treatment and injuries (if any) that Ms. Winn received as a result of the 7/18/11 MVA, 2/11/13 MVA, and 4/11/16 MVA.
Dr. King will testify that the below medical bills are all reasonable, necessary, and causally related to the 2/9/13 MVA: [listed in email].
All of Dr. King's testimony will be given within a reasonable degree of medical probability.
Please let me know if you have any additional questions.[3]

         On December 2, 2016, three months after the deadline for Plaintiffs expert disclosures, Defendant filed this Motion for Summary Judgment. His brief in support of the Motion was filed on the same day. Plaintiff responded on January 27, 2017. Defendant's Reply Brief was filed on February 7, 2017. Oral arguments were heard on February 24, 2017, and the matter is ripe for review.

         Contentions of the Parties

         Defendant's Motion turns on a very narrow issue of law: whether Plaintiffs expert disclosure, outlined in the above email, suffices to meet Plaintiffs obligation under Rule 26(b)(4)(A). Defendant argues that the email alone is fatal to Plaintiffs case as it does not suffice for Plaintiff to meet his prima facie burden at trial regarding causation and damages.

         In support, Defendant contends that Hill v. DuShuttle settled the issue of whether a plaintiff must produce a medical expert report in a personal injury case. Specifically, Defendant relies heavily on the Supreme Court's language that a "formal report is required under the rules. . . ."[4] Defendant further argues that this holding now supersedes any trial scheduling order that permits expert disclosures under Rule 26. Defendant cites three post-Hill decisions and one pre-///// decision in support of his Motion: Diaz v. Malarkey,[5] Watunya v. Siena,[6] Dixon v. Batson,[7] and Duncan v. O.A. Newton & Sons Co.[8]

         Plaintiff argues that dismissal is not warranted where the expert disclosure fully complies with this Court's trial scheduling order and Rule 26(b)(4)(A). Moreover, Plaintiff disagrees with Defendant's position that Hill mandates an expert report in all personal injury cases, and contends that the case law in support of dismissal is distinguishable from this case.

         Standard of Review

         The burden of proof on a motion for summary judgment falls on the moving party to demonstrate that "there is no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law."[9] If the moving party satisfies its initial burden, the non-moving party must sufficiently establish the "existence of one or more genuine issues of material fact."[10] Summary judgment will not be granted if there is a material fact in dispute or if "it seems desirable to inquire thoroughly into [the facts] in order to clarify the application of the law to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.