Submitted: March 20, 2018
for Kent County
Eason Primos, Judge.
the Court is Defendants Dover Ophthalmology ASC, LLC d/b/a
Blue Hen Surgery Center (hereinafter "BHSC"),
Rebecca A. Weber Sweet, R.N. (hereinafter "Nurse
Sweet"), and Jacqueline A. Tiller, R.N.'s
(hereinafter "Nurse Tiller" and "Defendants,
" collectively) Motion for Reargument of this
Court's March 2, 2018 Memorandum Opinion on pending
motions in limine, and Matthew Kent (hereinafter
"Mr. Kent") and Renee Kent's (hereinafter
"Ms. Kent" and "Plaintiffs, "
collectively) opposition to that motion. This opinion sets
forth the Court's decision on the motion.
are suing Defendants in medical negligence for injuries
allegedly suffered by Mr. Kent as a result of his treatment
at BHSC on June 26, 2014. On March 2, 2018, this Court
granted Plaintiffs' motion to exclude certain opinions of
Daniel M. Feinberg, M.D (hereinafter "Dr.
Feinberg"), specifically prohibiting Dr. Feinberg from
offering an expert opinion that Mr. Kent's CRPS and nerve
damage were caused by the initial insertion, rather than
prolonged placement, of an IV catheter that was placed in
accordance with the standard of care. This Court's
reasoning was simple: the Daubert line of cases
requires expert opinions to have reliable bases, and
Defendants' asserted basis for Dr. Feinberg's
opinion, i.e., Dr. Feinberg's "general
knowledge of the medical literature on venipuncture-caused
CRPS, " fell short of that standard.
motion for reargument filed pursuant to Superior Court Civil
Rule 59(e) will only be granted if "the Court has
overlooked a controlling precedent or legal principles, or
the Court has misapprehended the law or facts such as would
have changed the outcome of the underlying
decision." Motions for reargument should not be used
to rehash arguments already decided by the Court, or to
present new arguments that were not previously
raised. Using a motion for reargument for either
of these improper purposes "frustrate[s] the efficient
use of judicial resources, place[s] the opposing party in an
unfair position, and stymie[s] 'the orderly process of
reaching closure on the issues.'" In order for the
motion to be granted, the movant must "demonstrate newly
discovered evidence, a change in the law, or manifest
injustice." "Delaware law places a heavy burden
on a [party] seeking relief pursuant to Rule
their motion for reargument, Defendants allege that the Court
erred because it "misconstrued the factual record
underlying Dr. Feinberg's opinion." Defendants
assert that the basis of Dr. Feinberg's opinion is a
soundly performed differential diagnosis, and further that
the record reflects that "Dr. Feinberg performed a
physical examination of Mr. Kent, took his medical history
and reviewed extensive records and clinical test results,
including the report of the ultrasound performed by Dr.
Roedl, as well as a nerve conduction and electromyogram study
which showed no evidence of nerve injury .... [and]
eliminated another possible cause for the CRPS."
responding in opposition to the motion, argue that
"Defendants provided no evidence of a differential
diagnosis and did not argue that [Dr. Feinberg] performed a
differential diagnosis, until they filed a motion for
having thoroughly reviewed and considered the parties'
written submissions, as well as the controlling precedent,
the Court finds that its March 2, 2018 Order must stand
because the Court is not persuaded that it overlooked any
controlling law or misapprehended any fact.
Court fully apprehended the facts in this case, and
understood that Dr. Feinberg physically examined Mr. Kent,
took his medical history, reviewed tests, and appeared to
rule out possible causes. However, the Court was never
presented with any argument that Dr. Feinberg relied upon
these when forming his causation theory. Defendants'
response to Plaintiffs' motion to preclude certain
opinions of Dr. Feinberg failed to cite to any medical
literature, never mentioned the words
"differential" or "diagnosis, " and cited
to no case law or statute whatsoever. Questioned further at
oral argument, defense counsel indicated that Dr.
Feinberg's opinion is based on the medical literature
generally-again making no mention of a differential
diagnosis-and the Court requested that Defendants produce
specific literature. In response to this request, Defendants
replied, "it is not anticipated that at trial Dr.
Feinberg would specifically cite to any particular article on
this subject, but rather simply make the point at [sic] the
published medical literature includes no evidence linking
prolonged compression of a nerve in the context of
venipuncture with CRPS."
Court has provided Defendants with three separate
opportunities to inform the Court of the bases for Dr.
Feinberg's opinion: the initial written response to
Plaintiffs' motion, oral argument, and a supplemental
written response to the Court's targeted inquiry.
Defendants never indicated that the basis for Dr.
Feinberg's opinion was a differential diagnosis. This
argument is raised, only now, at the motion for reargument
stage. Considering this argument would "frustrate the
efficient use of judicial resources, place [Plaintiffs] in an
unfair position, and stymie 'the orderly process of
reaching closure on the issues.'"
for the foregoing reasons, Defendants' Motion for
Reargument is DENIED.