                              SUPERIOR COURT
                                   of the
                            STATE OF DELAWARE
Jeffrey J Clark                                              Kent County Courthouse
  Judge                                                           38 The Green
                                                                 Dover, DE 19901
                                                            Telephone (302)735-2111

                                   February 26, 2020


John Charles Willis                                    James E. Drnec, Esq.
Evelyn Holly Willis                                    Wharton Levin Ehrmantraut
1300 South Farmview Drive                              & Klein, P.A.
#A10                                                   300 Delaware Avenue
Dover, DE 19901                                        Suite 1110
                                                       Wilmington, DE 19899

                  RE: John Charles Willis and Evelyn Holly Willis v. Bayhealth
                      Surgical Assoc., John F. Glenn, III, M.D., and Bayhealth
                      Medical Center, Inc., D/B/A Kent General Hospital
                      K18C-05-031 JJC

                              Submitted: January 24, 2020
                              Decided: February 26, 2020

Dear Mr. and Ms. Willis and Mr. Drnec:

       This letter order provides the Court’s reasoning and decision regarding
Defendants Bayhealth Surgical Associates, John F. Glenn, III, M.D., and Bayhealth
Medical Center’s (hereinafter, collectively “Bayhealth’s”) summary judgment
motion. At the outset, after reviewing the evidence and considering Mr. and Ms.
Willis’s (hereinafter, collectively, “the Willises’”) arguments, the Court recognizes
that Mr. Willis suffered extremely serious and unfortunate complications following
his treatment. The Court does not question their good faith belief that Bayhealth is
responsible. They have been professional and persistent in advancing their claims
without an attorney. Throughout the pretrial process, counsel for Bayhealth has also
interacted patiently and professionally with the Willises.
          Apart from these observations, however, the Court must apply well settled
legal principles when deciding Bayhealth’s motion for summary judgment.
Delaware statute requires that a plaintiff that sues for medical negligence must
present expert medical testimony at trial that a defendant breached the standard of
care and that the breach caused harm.1 Here, the discovery period is closed and the
Willises have identified no expert medical opinion that meets these requirements.
Accordingly, Bayhealth’s motion for summary judgment must be granted.

               The Parties’ Arguments and the Procedural Background
          Mr. Willis suffered from a leg wound and infection. The Willises assert claims
of health care negligence against Bayhealth.        In their complaint, they allege the
following: (1) Bayhealth misdiagnosed Mr. Willis; (2) Bayhealth negligently treated
him by prescribing the wrong medication to treat the wound; and (3) the
misdiagnosis and incorrect treatment permitted further infection that required
additional medical treatment.
          Bayhealth now moves for summary judgment alleging that the Willises have
identified no medical expert’s opinion that supports their claims. In response, the
Willises claim that their expert disclosures are sufficient. Namely, they argue that a
report from Dr. Nicholas Biasotto provides the necessary expert opinion.
          Discovery in this matter took place over eight months. On April 15, 2019, the
Court issued its scheduling order. The order set an August 6, 2019 deadline for the
Willises to meet their expert disclosure requirements. After the Willises failed to
provide expert disclosures by August 6th, Bayhealth’s counsel reminded them by e-

1
    18 Del. C. § 6853 (e).
                                             2
mail that the disclosures were late.2 Thereafter, on August 21, 2019, the Willises
filed their “Defendant’s Expert Discovery Disclosure.” It was a document that
merely listed physicians who treated Mr. Willis after his Bayhealth treatment.3 On
August 23, 2019, Bayhealth’s counsel again contacted the Willises, explained the
deficiencies in their expert disclosures, and requested that they supplement them by
September 6, 2019.4
       After the Willises did not, Bayhealth filed a motion to dismiss. In response,
the Willises filed a motion to amend the scheduling order, seeking more time to
obtain an expert. The Court heard the Willises’ motion to amend the scheduling
order first. At a hearing on that motion, Bayhealth did not oppose an amendment to
the scheduling order that provided the Willises additional time. The Court then
entered an order extending their expert disclosure deadline to December 1, 2019.
       On November 26, 2019, the Willises contacted Bayhealth to request an
additional extension until December 16, 2019.5 When Bayhealth declined, the
Willises submitted a letter to the Court requesting additional time.6 At that point,
Bayhealth withdrew its opposition and stipulated to a further extension until
December 16, 2019. When doing so, Bayhealth conditioned this agreement upon its
assumption that the Willises would request no further extensions.7
       On December 16, 2019, the Willises e-mailed a report from Dr. Biasotto to
Bayhealth.8 On December 20, 2019, they filed Dr. Biasotto’s report and a letter from




2
  Def. Mot., Ex. D.
3
  Def. Mot., Ex. E.
4
  Def. Mot., Ex. F.
5
  Def. Mot., Ex. H.
6
  Def. Mot., Ex. I.
7
  Def. Mot., Ex. J.
8
  Def. Mot., Ex. K.
                                         3
Dr. Thomas Burke with the Court. Dr. Burke’s letter explained the treatment that
he provided Mr. Willis.9 Dr. Biasotto’s report provided only the following:
       [Mr. Willis’s] wounds were very friable and exquisitely tender and had
       been increasing in size from previous debridements. This led me to
       consider vasculitis and/or pyoderma gangrenosa as the diagnosis. This
       type of wound is extremely painful and typically gets worse and
       enlarges with debridement, if the inflammatory process is not
       controlled. Biopsies were performed using an immunofluorescent
       technique, which distinguishes the normal from vasculitic lesions. . . It
       should be noted that the usual H & E stained biopsies may NOT identify
       atypical wounds such as pyoderma and/or vasculitis;
       immunofluorescent stains are needed to make the diagnosis.10
Bayhealth then filed the present motion for summary judgment.

                             Summary Judgment Standard
       Summary judgment is appropriate only if there is no genuine issue of material
fact and if Bayhealth is entitled to judgment as a matter of law.11 The Court must
view the evidence in the light most favorable to the Willises, as the non-movants.12
The burden of proof is initially on Bayhealth, who seeks summary judgment.13
However, if Bayhealth meets its burden, then the burden shifts to the Willises to
demonstrate the existence of material issues of fact.14 Their evidence of material
facts in dispute must be sufficient to withstand a motion for judgment as a matter of
law and to support the verdict of a rational jury.15 After adequate time for discovery



9
  See Def. Mot., Ex. L (stating that Mr. Willis “was seen in [Burke Dermatology’s] practice June
9, 2016 and September 21, 2016. He presented with an eczema like reaction on his arms and legs
and an ulcer located on his left lower leg. The ulcer was biopsied and the results came back
consistent with Stasis Ulcer. Patient has not had any follow up visit.”).
10
   Pl. Resp., Ex. A.
11
   Super. Ct. Civ. R. 56(c); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
12
   Brozaka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
13
   Super. Ct. Civ. R. 56(e); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
14
   Id. at 681 (citing Hurtt v. Goleburn, 330 A.2d 134 (Del. 1974)).
15
   Lum v. Anderson, 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004).
                                               4
and upon motion, summary judgment must be entered against a party who cannot
demonstrate facts supporting an essential element of that party’s case.16

                                          Discussion
       In order to prevail, the Willises must present expert medical testimony
supporting their claim. Namely, 18 Del. C. § 6853(e) provides that “[n]o liability
shall be based upon asserted negligence unless expert medical testimony is presented
as to the alleged deviation from the applicable standard of care in the specific
circumstances of the case and as to the causation of the alleged personal injury or
death[.]”17 Given this “statutory mandate, the production of expert medical
testimony is an essential element of a plaintiff’s medical malpractice case.”18 The
plaintiff bears the burden of proof to step forward with such expected testimony.19
Under the rules of civil discovery, a plaintiff must identify it prior to trial.
       Here, the Willises do not identify an expert opinion that Bayhealth deviated
from the applicable standard of care.20 The Willises initially failed to identify
evidence meeting their burden by the original deadline of August 6, 2019. The Court
permitted them more than four additional months to obtain the necessary medical
expert evidence. Although they eventually filed letters from two doctors, neither
document addresses the applicable standard of care.                    Nor do they address
Bayhealth’s deviation from that standard. Finally, neither doctor’s letter addresses
the element of causation of harm. Instead, the documents discuss their diagnoses
and Mr. Willis’s course of treatment.

16
   Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986)).
17
   18 Del. C. § 6853(e) (emphasis added).
18
   Burkhart, 602 A.2d at 59 (citing Russell v. Kanaga, 571 A.2d 724, 732 (Del. 1990)).
19
   Id.
20
    Dr. Biasotto’s statements that the wounds increased in size due to previous debridements
arguably provide evidence of the second statutory requirement that Bayhealth’s actions
proximately caused Mr. Willis’s aggravated personal injury.
                                                5
       The Court recognizes that pro se litigants are afforded some leniency when
presenting their case.21 However, all plaintiffs must meet the same substantive
requirements.22 Any leniency must be limited to the extent that it does not affect the
substantive rights of the parties.23 Here, the Willises have failed to identify in
discovery the evidence necessary to meet their burden of proof at trial. Excusing
this requirement would impair Bayhealth’s substantive rights. In the absence of an
expert medical opinion that (1) Bayhealth deviated from the applicable standard of
care, or that (2) this deviation proximately caused harm, summary judgment for
Bayhealth must be granted.

                                        Conclusion
       In summary, after receiving adequate time for discovery, the Willises have
not produced an expert medical opinion that Bayhealth deviated from the applicable
standard of care, or that such a deviation caused them harm. Accordingly, summary
judgment on behalf of Bayhealth must be GRANTED.
       IT IS SO ORDERED.

                                                                 /s/ Jeffrey J Clark
                                                                        Judge
JJC:jb
Via File & ServeXpress and U.S. Mail




21
   Damiani v. Gill, 116 A.3d 1243, 2015 WL 4351507, at *1 (Del. 2015) (TABLE).
22
   Id. (quoting Draper v. Med Ctr., 767 A.2d 796, 799 (Del. 2001).
23
   Tsipouras v. Szambelak, 2012 WL 1414096, at *1 (Del. Super. Apr. 5, 2012) (quoting Anderson
v. Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011)).
                                              6
