SUPER|OR COURT
oF THE

STATE OF DELAWARE

VIleN L. MEDIN!LLA LEoNARD L. WlLLlAMs JusTlcE CENTER
JuDGE 500 NoRTH KlNG STREET, sulTE 10400

WlLNuNGToN, DE 19801-3733

TELEPHoNE (302) 255-0626

February 27, 2017

LaWrence Spiller Kimmel, Esq. Arthur D. Kuhl, Esq.
Brian S. Legum, Esq. Brandywine Plaza East
Kimmel, Carter, Roman, 1523 Concord Pike
Peltz & O’Neill, P.A. Suite 200

P.O. Box 8149 Wilmington, DE 19803

Newark, DE 19714

Re: K’Lynne A. Winn v. Charles O. Clements
Case No.: N15C-01-124 VLM

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 Hz'll v. Du.$'huttlel not only unduly broadens the scope of that decision, but
the rationale for dismissal runs counter to its holding.

Relevant Factual and Procetlural Background

This is a personal injury claim involving two motor vehicle accidents that

 

1 58 A.3d 403 (Del. 2013).

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 “Plaintiff’s expert
reports (or Rule 26(b)(4) disclosures)” Was August 31, 2016. On August 2, 2016,
Plaintiff’s 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 7/18/11MVA,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.

 

2 Plaintiff K’Lynne Winn settled her claims with respect to the February ll, 2013 accident.
Plaintiff Billy Winn, after filing suit in this consolidated action, stipulated to dismissal of his
claims on December 29, 2016. All that remains before the Court is Plaintiff K’Lynne Winn’s
claim regarding the February 9, 2013 accident against Defendant Charles Clements.

2

Please let me know if you have any additional questions.3

On December 2, 2016, three months after the deadline for Plaintiff’ s 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 Plaintiff’s
expert disclosure, outlined in the above email, suffices to meet Plaintiff’s
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 Hz'll 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-HSz`ll decisions and on6e pre-Hz'll decision
in support of his Motion: Diaz v. 1’1/!¢111:1)'8key,5 Watunya v. Siena,6 Dz'xon v Batson,7
and Duncan v. O..A Newton & Sons CG.S

 

3 See Defendant’s Motion at Exhibit B; Plaintiff’s Response at Exhibit A. Between August 2,
2016 and August 4, 2016, counsel for both parties engaged in email correspondence regarding
the sufficiency of the August 2, 2016 email disclosure Plaintiff supplied additional information
regarding Dr. King’s proposed testimony in an email to Defense counsel the same evening of the
August 2, 2016 disclosure. See Plaintiffs Response at Exhibit A (attaching emails). The parties
reached an impasse on the issue and this Motion was filed on December 2, 2016.

4 Defendam’s Motion at 3 (quoting Hill, 58 A.3d at 406).
5 2015 WL 3508064(1)€1. super June 3, 2015).

6 2014 wL 4249677 (Del. super. Aug. 27, 2014).

7 2015 WL 4594159(1)@1. super. July 30, 2015).

8 2006 WL 2329378 (Del. super. July 27, 2006).
3

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.”]O 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 circumstances.”]l “All facts and reasonable inferences must be considered in a
light most favorable to the non-moving party.”12

Discussion

Rule 26(b)(4)(A) permits discovery of otherwise discoverable material made
in anticipation of trial in the following manner:

A party may through interrogatories require any other
party to identify each person whom the other party
expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to
which the expert is expected to testify and a summary of
the grounds for each opinion. (ii) Upon motion, the

 

9 DEL. SUPER. CT. Clv. R. 56(c).

10 Quall`ly Elec. Co., lnc. v. E. States Const. Serv., Inc., 663 A.2d 488, 1995 WL 379125, at *3-4
(Del. 1995) (TABLE). See also Rule 56(e); Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).

ll Ebersole v. Lowengrab, 180 A.2d 467, 469-70 (Del. 1962).
12 Nun v. A.C. & s. Co., lnc., 517 A.2d 690, 692 (De1. super. 1986) (ciring Mechezl v. Palmer,

343 A.2d 620, 621 (Del. 1975); Allstate Aato Leasing Co. v. Cala'well, 394 A.2d 748, 752 (Del.
Super. 1978)).

Court may order fisrther discovery by other means,
subject to such restrictions as to scope and such
provisions, pursuant to subdivision (b)(4)(C) of this Rule,
concerning fees and expenses as the Court may deem
appropriate l 3

Defendant seeks to have this Court interpret Hill to require expert reports in
all personal injury cases. In Hill, the Supreme Court reversed the dismissal of a
personal injury case where the plaintiff failed to file an expert report according to
the Superior Court’s trial scheduling order and multiple subsequent orders
compelling him to produce a formal report.14 The Supreme Court held that the
lower court abused its discretion when it issued the sanction of dismissal for failure
to file a medical expert report. Yet, interestingly, the Defendant seeks the sanction
of dismissal here.

Plaintiff’ s counsel in Hill wrote an email to defense counsel stating simply
that counsel would rely on the plaintiffs treating physicians as experts and they
would testify consistent with their records that had already been produced to
defense counsel.15 That email was sent on the deadline for expert medical
disclosures according to the trial scheduling order.16 The defendant immediately
notified the plaintiff that it treated the disclosure as insufficient without
information of the experts’ “identity, . . . qualifications, . . . opinions and the bases
for those opinions. . . .”17 Plaintiff stated he would “go through the exercise,” but
explained to counsel in his email response that he “won’t learn anything new” by
way of a formal disclosure.18 Plaintiff’s counsel never provided the formal
disclosure,9 despite the trial court ’s entry of orders compelling counsel to produce
the same.

 

13 DEL. suPER. CT. Crv. R. 26(b)(4)(A).

14 See generally Hill v. DuShuttle, 58 A.3d 403 (Del. 2013).
15 See id, at 404.

‘6 see id.

17 Id_

18 Id_

19 see 1a 31404-05.

Quite different from Hill, the expert report in this case recites Dr. King’s
identity and opinions regarding Plaintiff’ s inquiries as it relates the motor vehicle
accident. Moreover, in Hill, counsel openly defied the trial court’s orders to
produce a formal report. Additionally, plaintiff counsel’s email disclosure in Hill
came on the final day of the deadline. Here, the disclosure came approximately
one month before the deadline and Defense counsel never filed a motion to compel
a more formal disclosure.

lmportantly, Defendant gloms on to one sentence in the final paragraph of
Hill’s discussion section: “Whether it would provide more information or not, a
formal report is required under the rules and the trial court ordered that a report be
prodl_iced.”20 This Court finds that Defendant places too much emphasis on the
first part of this sentence and not enough on the second portion-a reading that
distorts the holding in Hill. The Court in Hill was far more concerned with the
issue of whether the sanction of dismissal was appropriate in light of counsel’s
“cavalier” attitude.21 The use of the word “formal” appears to distinguish what is
expected under the rules from the barebones nature of the email counsel initially
provided in Hill. Given cases that postdate Hill, it does not stand that the Supreme
Court meant to impose a requirement under Rule 26(b)(4)(A) that an expert must
author a formal report in all instances even where the trial scheduling order does
not impose such a requirement

For example, in Watunya v. Siena, the Court granted the defendant-insurer’s
motion to preclude the testimony of the plaintiffs treating physicians and experts
in a personal injury suit.22 That relief was given to the defendant where plaintiff’ s
counsel never “provided expert reports or otherwise explained the basis for their
expert opinions so that the defense can prepare for their testimony in court.”23
Beyond a cursory identification of the physicians in responses to interrogatories,
plaintiffs counsel failed to disclose any additional information on their expected
testimony24

 

20 la'. at 406 (emphasis added).

21 Ia'. (“counsel’s cavalier attitude”).

22 2014 WL 4249677 (Del. super Aug. 27, 2014).
”Man.

24 see 1a

The Court in Watunya never cited Hill.25 Instead, it relied on Duncan and
Sammons to hold that Plaintiff had a duty to provide an expert disclosure pursuant
to Rule 26(b)(4)(A) beyond simply identifying their names in an interrogatory
answer or relying on their opinions as contained in the medical records.26 The
Wantaya Court was primarily focused on the concept of notice: “It is not
reasonable to require Defendants’ counsel to go on a wild goose chase with
Plaintiff’s experts or to depose Plaintiff’s experts without the benefit of having the
opinions and the medical or scientific reasoning for those opinions.”27 In fact,
plaintiffs counsel had provided a report for one expert, but failed to do so for the
other experts.za Here, Defendant has been provided fair notice of Dr. King’s
opinions. This case is, therefore, distinguishable from the facts of Watanya.

In Diaz v. Malarkey, the Court rejected the same argument that Hill required
a formal expert report.29 Also a personal injury suit, plaintiff’ s medical expert in
Diaz created an “Office Note” wherein the medical expert “opine[d] on Plaintiff
Diaz’s medical condition.”30 The Court held that the Office Note sufficed to meet
the requirements under Rule 26(b)(4)(A) notwithstanding the fact that plaintiffs
counsel attached the Note for the first time in his opposition to the motion to
preclude his expert.31 In the present case, the same defense counsel is essentially
attempting to argue the application of the principle he garners from Hill exactly as
he did_unsuccessfully_in Diaz. Although defense counsel suggested that the
trial court mandated a “report” in that case, this Court finds that Diaz demonstrates
instead that an expert report may come from less-formal sources, such as an office
note.

 

25 See generally ia'.

26 See ia’. at *1 (citing Sarnmons v. Doctors For Emergency Servs., P.A., 913 A.2d 519 (Del.
2006); Duncan v. O.A. Newton & Sons Co., 2006 WL 2329378 (Del. Super. July 27, 2013)).

27 1a (quoting sammons, 913 A.2d ar 529).

28 See ia'. at *2.

29 2015 WL 3508064 (Del. super. June 3, 2015).
30 ld. ar *1.

31 See ia'.

Dixon v. Batson is cited as Defendant’s best case in support of his position.32
But, even this case is distinguishable from the present case. The Dixon Court did
not dismiss but instead ordered the plaintiff to “augment” his expert disclosure for
three treating physicians named as medical experts. 33 The Dixon Court held that
the disclosures were insufficient under Rule 26(b)(4)(A). The disclosures, made
through a series of discovery responses failed to state bases for the experts
opinions, and were recited in identical fashion for each expert34 The Court
outlined the boilerplate nature of the discovery responses in Dixon, identifying
three problems with the disclosures: (l) there lacked any bases for each expert’s
opinion; (2) the “pro forma, and identical recitation of the substance of each
experts’ projected testimony” would cause the defendant to go on a “wild goose
chase;” and (3) “of great significance, is that the ‘disclosures’ are not from the
expert at all. ”35 The Court required the plaintiff submit a revised disclosure for
each expert; however, the Court did not require that the experts’ themselves submit
the disclosures, calling the latter option “optimal ” but not necessarily required36

Dixon is distinguishable in a few respects. The focus in Dixon was
specificity. Here, there has been no boilerplate recitation of the expert’s opinions
and the opinions of Dr. King are clearly set out. Therefore, Dixon is less
persuasive than Defendant posits.

Rule 26(b)(4)(A) requires disclosure of the identity of the expert, his/her
opinion, and the bases for those opinions. These must be stated in such a manner
that the other side has adequate notice of the expert’s expected testimony. This
Court finds that Plaintiff’s Rule 26(b)(4)(A) disclosure is sufficient to properly
place Defendant on notice regarding the identity of the expert, his opinion, and the
basis of his opinion with sufficient specificity regarding the casual relationship
between Plaintiff’s injuries and the motor vehicle accident in question. As such,

 

22 2015 WL 4594159(De1. super. July 30, 2015).
33 See id. at *1.
34 -
See generally ia’.
25 1a at *3-4.

36 See ia’.

Defendant’s Motion is DENIED.
IT IS SO ORDERED.

Sincerely,

/"
. / //
/,

vivian 11’ Mediniua
Judge

