IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MATTHEW KENT and RENEE KENT, :
C.A. No. Kl6C-04-022 NEP
Plaintiffs, : In and for Kent County

vi

THE DOVER OPHTHALMOLOGY
ASC., LLC d/b/a BLUE HEN SURGERY :
CENTER; REBECCA A WEBER
SWEET, R.N.; and JACQUELINE A.
TILLER, R.N., BSN-BC, MSN.

Defendants.

Submitted: April 9, 2018
Decided: Apn`l 12, 2018

ORDER

Before the Court is Defendants Dover Ophthalmology ASC., LLC d/b/a Blue
Hen Surgery Center (hereinafter “BHSC”), Rebecca A. Weber Sweet, R.N.
(hereinal°cer “Nurse SWeet”), and Jacqueline A. Tiller, R.N.’s (hereinai°cer “Nurse
Tiller” and “Defendants,” collectively) Motion for Leave to File a Supplemental
Expert Disclosure, and Plaintiffs Matthew Kent (hereinalter “Mr. Kent”) and Renee
Kent’s (hereinal°cer “Ms. Kent” and “Plaintiffs,” collectively) opposition to that
motion.

Plaintiffs 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. In this
case, the Court has moved back discovery deadlines several times. Pursuant to the
Court’s final revised scheduling order, all defense expert disclosures Were due by

August 30, 2017. In addition, on January 5, 2018, the Court granted Defendants’

Matthew Kent et al v. T he Dover Ophthalmology ASC., LLC et al
Kl 6C-04-022 NEP
April 12, 2018

Motion to Postpone Trial. The trial, previously Scheduled to begin on January 22,
2018, Was continued until April 16, 2018.

On January 19, 2018, the Court heard oral argument on the parties’ motions
in limine, and on February 2, 2018, Defendants filed a letter submission, requested
by the Court, to provide specific citations to literature supporting the causation
opinion of defense expert Daniel M. Feinberg M.D. (hereinafter “Dr. Feinberg”). On
March 2, 2018, the Court granted Plaintiffs’ motion to exclude certain opinions of
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 placed in accordance With the standard
of care. The 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_Dr. Feinberg’s “general knowledge of the medical literature on
venipuncture-caused CRPS”l _fell short of that standard.2 On March 9, 2018,
Defendants filed a motion for reargument, and alleged in that motion, for the first
time, that the basis for Dr. Feinberg’s opinion Was a differential diagnosis.

On March 23, 2018, this Court denied Defendants’ motion for reargument,
explaining that motions for reargument “should not be used to . . . present new
arguments that Were not previously raised.”"’ The Court noted that it had 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,” and

 

l Defendant’s letter submission dated February 2, 2018.
2 Kent v. Dover Ophthalmology, 2018 WL 1151930 (Del. Super. Mar. 2, 2018).
3 Kent v. Dover Ophthalmology, 2018 WL 1448675, at *1 (Del. Super. Mar. 23, 2018).

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that “Defendants never indicated that the basis for Dr. Feinberg’s opinion was a
differential diagnosis.”4

Now, Defendants seek to file a supplemental expert disclosure that differs
markedly from Dr. Feinberg’s earlier disclosures: (l) it claims that Dr. Feinberg
“reached these opinions in part based on a differential diagnosis;” and (2) it lists four
specific studies as the bases for certain of Dr. Feinberg’s opinions.5 Defendants’

motion asserts that the Court should allow this untimely disclosure, arguing:

Delaware greatly favors deciding cases on the merits. Accordingly, in
circumstances where a party’s ability to have its case adjudicated on the
merits would be limited because of its failure to timely provide
adequate expert opinions, Delaware courts have consistently held that
the party should be permitted to take corrective measures,
notwithstanding the fact that relevant scheduling deadlines had passed
and trial was imminent.

Plaintiffs respond that this motion to file a supplemental disclosure is
essentially a disguised second motion for reargument of this Court’s order
precluding certain opinions of Dr. Feinberg. Plaintiffs also complain that the motion
seeks to introduce additional discovery shortly before trial, and alleges that they
would be prejudiced.

“This Court’s scheduling orders are not guidelines.”6 To maintain trial dates
and ensure the effective administration of justice, this Court is empowered with

discretion “to resolve scheduling issues and to control its own docket.”7 Even so,

 

4 Id. at *2.

5 As noted previously, in their submission dated February 2, 2018, Defendants stated that Dr.
Feinberg would not be relying on any specific medical literature, but instead on his general
knowledge of the literature

6 Estate of Shephera' ex rel Mathis v. Samuel, 2011 WL 882093, at *1 (Del. Super. Mar. 10,
201 l).

7 Valentine v. Mark, 873 A.2d 1099 (Table) 2005 WL 1123370, at *1 (Del. 2005).

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deviations from the Court’s orders may be permitted when a showing of good cause
has been made, i.e., when a party has established “that diligent efforts were made to
meet the deadlines.”8 The Supreme Court of Delaware explained in Coleman v.
PricewaterhouseCoopers, LLC,9 that when determining whether to permit an
untimely supplemental expert report, Delaware courts balance several factors,
including: (l) the original scheduling order; (2) whether there is good cause to allow
the supplemental disclosure; (3) the prejudice to the opposing party; and (4) possible
trial delay.10

As an initial matter, the Court will address Christian v. Counseling Resource
Associates, Inc.,ll and Drejka v. Hitchens Tire Services Inc.,12 which, according to
Defendants, provide certain factors that should control the Court’s analysis.13 These
cases are inapplicable here because their holdings are confined to situations where a
trial court is “deciding whether to dismiss a case for discovery violations.”14 This
Court has previously noted that it “is loath to hold that a balancing of the Drejka
factors is necessary in every instance where a party’s expert witness is at risk of
being excluded on the basis of failure to comply with a scheduling order, as the
Drejka analysis seems geared towards those cases where only the ‘ultimate sanction’

of dismissal is implicated.”15 Here, the Defendants’ entire case is not at stake. They

 

8 Candlewood Timber Group, LLC v. Pan American Energy, LLC, 2006 WL 258305 at *4 (Del.
Super. Jan. 18, 2006).

9 902 A.2d 1102 (Del. 2006).

10 Ia'. at 1107 n.6; see also Concora' Towers, Inc. v. Long, 348 A.2d 325 (Del. 1975).

11 60 A.3d 1083 (De1.2013).

12 15 A.3d 1221 (De1.2010).

13 “(l) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused
by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness;
(4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions;
and (6) the meritoriousness of the claim or defense.” Id. at 1224.

14 Christian, 60 A.3d at 1087.

15 Dillulio v. Reece, 2014 wL 1760318, at *4(De1. super. Apr. 23, 2014).

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do not bear the burden at trial; Dr. Feinberg will still be able to testify on other
matters (including attacking the causation opinions of Plaintiffs’ expert, Dr. Enrique
Aradillas-Lopez); and the Defense has other witnesses it intends to call to rebut
liability and damages The Court finds that the Coleman standard, referenced above,
applies, as it concerns the precise issue encountered here, i.e., whether to permit the
filing of an untimely supplemental expert report.16

Addressing the first Coleman factor, the Court ordered that all defense expert
reports were to be filed by August 30, 2017. The proffered supplemental report here
was filed March 28, 2018, more than six months after the deadline. This constitutes
substantial noncompliance with the Court’s scheduling order,17 and weighs against
permitting the supplemental disclosure

Turning to the second factor, Defendants allege that there is good cause for
allowing the supplemental disclosure here because “perrnitting the untimely
supplementation will allow this case to be fully decided on the merits.” Defendants
allege that they “face a significant constraint on their ability to fully defend this case
because the Court precluded a substantial portion of the opinion of their sole
causation expert,” and allowing the supplemental disclosure will “cure what the
Court appears to have found to be defects in the manner in which the opinion was
characterized by counsel in opposing the Plaintiffs’ Daubert motion.” According to
these representations, it appears this motion is intended to lay the groundwork for a
second motion for reargument Without such a motion, this Court’s order on the

motions in limine prohibiting certain of Dr. Feinberg’s opinions would stand, and

 

16 The Coleman case examined whether there was abuse of discretion when the trial court
“den[ied] the appellants’ attempt to supplement the original report of their expert.” Coleman v.
PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 (Del. 2006).

17 Cf Chase Manhattan Mor!gage Corp. v. Aa'vanta Corp., 2004 WL 422681, at *10 (D. Del.
2004) (permitting untimely supplemental report filed only a few weeks after the deadline).

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the instant motion would be purposeless. The fact that another motion for
reargument would be untimely renders Defendants’ assertions of their need for a
supplemental disclosure less convincing. 18 Moreover, it appears that Defendants
misunderstand what is required to make a showing of good cause. Absent from their
motion is any showing of past diligent efforts to disclose fully the bases for Dr.
Feinberg’s opinions. Rather, the record shows that even when Dr. Feinberg’s
opinions were challenged by a Daubert motion on November 27, 2017, Defendants
made no efforts to file a supplemental disclosure in response.

Regarding the third factor, the threatened prejudice to Plaintiffs is substantial.
Trial is only days away, and Plaintiffs’ trial preparation has depended upon this
Court’s March 2, 2018 order on the motions in limine. Were Defendants to attempt
to disturb this Court’s prior order precluding certain opinions of Dr. Feinberg,
Plaintiffs would have little time to prepare for and respond to the opinions from Dr.
Feinberg. As this Court indicated in its denial of the motion for reargument,
permitting Defendants another opportunity to re-litigate the motions in limine 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.”’19

Finally, were this motion to be granted, the trial date would be jeopardized.
As indicated previously, this motion is apparently a prelude to a future motion
seeking to allow certain previously precluded opinions of Dr. Feinberg. The time
required for briefing, holding a possible hearing on, and ruling on such a motion

would be far greater than the short period remaining before trial. This trial has

 

18 See Super. Ct. Civ. R. 59(e)(“A motion for reargument shall be served and filed within 5 days
after the filing of the Court’s opinion or decision.”) (emphasis added).

19 Kent v. Dover Ophthalrnology, 2018 WL 1448675, at *1 (Del. Super. Mar. 23, 2018) (citing
Tilghman v. Del. State Univ., 2012 WL 5551233, at *1 (Del. Super. Oct. 16, 2012)).

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already been pushed back once, and the Court will not risk another delay
unnecessarily.

Each of the above factors weighs in favor of denying the instant motion.

WHEREFORE, for the foregoing reasons, Defendants’ Motion for Leave to
File a Supplemental Expert Disclosure is DENIED.
IT IS SO ORDERED.

/s/ Noel Eason Primos

NEP/wj s

Via File & ServeXpress
oc. Prothonotary

cc. Counsel of Record

