IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SCOTT STEPHENSON and
DANIELLE STEPHENSON
Individually and as Guardian ad
Litem for her Minor Daughters,
AVA STEPHENSON, and
LILLIAN STEPHENSON, C.A. No. N17C-06-383 CLS

Plaintiffs,
Vv.

BIG OAKS TRAILER PARK, INC.,
d/b/a BIG OAKS CAMPGROUND,
and BOYER’S TREE SERVICE

Nee Nee ee’ ee ee” ee” “ee” Ne” Se’ ee” ee” ee” Se” Se” Ne” Ne”

Defendants.

Date Submitted: June 14, 2019
Date Decided: September 10, 2019

Upon Defendant Big Oaks Trailer Park Inc.’s
Motion in Limine to Exclude the Testimony of
Dr. Nicole Gable, Dr. Steven Grinder, Allegra Hamman and Jacqueline Blair
Denied.
Upon Defendant Big Oak Trailer Park Inc.’s
Motion for Summary Judgment
Denied.

Sean P. Gambogi, Esquire, Kimmel, Carter, Roman, Peltz & O’Neill, Newark,
Delaware, Attorney for Plaintiffs.

Michael I. Silverman, Esquire and Adrienne M. McDonald, Esquire, Wilmington,
Delaware, Attorney for Defendants.

Scott, J.
Background

Plaintiffs Scott and Danielle Stephenson bring this personal injury claim on
behalf of themselves and their minor daughters, Ava and Lillian Stephenson, against
Defendants Big Oaks Trailer Park, Inc. and Boyer’s Tree Service.

On July 3, 2015 Scott, Danielle, Ava, and Lillian Stephenson were camping
at campsite PV-1 on the property of Big Oaks Campground. Plaintiffs allege that on
or about 9:30 pm on July 3, 2015, a large tree limb from an oak tree near campsite
PV-1 broke and fell into the Stephenson family’s campground, bringing smaller tree
limbs from a nearby hickory tree down with it. Plaintiffs allege that they were hit
by some of the falling tree limbs and suffered physical and mental injuries as a result.

Plaintiffs allege that Defendant Big Oaks Trailer Park, Inc. (“Defendant”)
acted negligently by failing to properly inspect, maintain, and remove trees on its
property, creating an unsafe condition.’ Plaintiffs assert that Defendant’s negligence
proximately caused the accident.? The complaint requests general and special
damages for physical and mental injury, property damage, and loss of consortium in

an amount to be determined by the jury.’

 

' Compl. ¢ 5.
2 Id.
3 Id. 49.
Plaintiffs identified their medical experts in a disclosure on December 18,
2018.4 Defendant now moves to exclude the testimony of Plaintiffs’ medical expert
witnesses Dr. Nicole Gable, Dr. Steven Grinder,’ Allegra Hamman, and Jacqueline
Blair. Concurrently, Defendant moves for summary judgment. For the following
reasons, Defendant’s Motion in Limine to Exclude the Expert Testimony is
DENIED and Defendant’s Motion for Summary Judgment is DENIED.

Parties’ Assertions

On May 20, 2019, Defendant filed a Motion in Limine to Exclude the
Testimony of Dr. Nicole Gable, Dr. Steven Grinder, Allegra Hamman, and
Jacqueline Blair, arguing that Plaintiffs failed to comply with the Trial Scheduling
Order by not providing Defendant with the experts’ reports.° Defendant argues that
the “treatment notes” provided by Plaintiffs did not contain the experts’ opinion on
the cause of Plaintiffs’ injuries and thus, do not constitute expert reports.’ Defendant

asks the Court to exclude Plaintiffs’ medical experts’ testimony.®

 

4 Def.’s Mot. in Lim. to Exclude the Testimony of Dr. Nicole Gable, Dr. Steven
Grinder, Allegra Hamman and Jacqueline Blair Ex. A.

> Filings by Plaintiffs and Defendant refer to this individual as “Dr. Steven
Grinder.” This is error; his name is Dr. Steven Ginder. For the sake of
consistency, however, this Court will use the incorrect spelling when referring to
Plaintiffs’ and Defendant’s filings.

© Def.’s Mot. in Lim. to Exclude the Testimony of Dr. Nicole Gable, Dr. Steven
Grinder, Allegra Hamman and Jacqueline Blair { 15.

1 Id. 9§ 6-15.

8 Id. 4 16.
On May 20, 2019, Defendant also filed a Motion for Summary Judgment
arguing that Plaintiffs cannot establish causation, a prima facie element of their
claim, without the medical experts’ testimony.’

On June 14, 2019, Plaintiffs filed their Response to Defendant’s Motion for
Summary Judgment and Defendant’s Motion in Limine to Exclude the Testimony
of Dr. Nicole Gable, Dr. Steven Grinder, Allegra Hamman, and Jacqueline Blair,
arguing that their disclosures comply with the requirements of the Trial Scheduling
Order.!° Plaintiffs contend that medical records suffice as expert reports and ask the
Court to deny Defendant’s Motion in Limine and Motion for Summary Judgment."

Standard of Review

The Court may grant summary judgment if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to summary judgment as a matter of law.”'? The moving party bears
the initial burden of showing that no material issues of fact are present.'? Once such

a showing is made, the burden shifts to the non-moving party to demonstrate that

 

? Def.’s Big Oaks Trailer Park Inc.’s Mot. for Summ. J. §{] 7-20.

10 P}s.” Resp. to Def.’s Mot. for Summ. J. and Def.’s Mot. in Limine to Exclude the
Testimony of Dr. Nicole Gable, Dr. Steven Grinder, Allegra Hamman and
Jacqueline Blair 4] 8-10.

"Id. Jf 8-10.

12 Super. Ct. Civ. R. 56(c); Buckhart v. Davies, 602 A.2d 56, 59 (Del. 1991).

'3 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

4
there are material issues of fact in dispute.'* In considering a motion for summary
judgment, the Court must view the record in a light most favorable to the non-
moving party.!> The Court will not grant summary judgment if it seems desirable to
inquire more thoroughly into the facts in order to clarify the application of the law."
Discussion
A. Defendant’s Motion in Limine
Pursuant to Delaware Superior Court Rule 26(b)(4)(A)(@):

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.!”

It was thus within the Defendant’s right to request expert reports from the

Plaintiffs’ medical experts.'® Although the Trial Scheduling Order originally

required Plaintiffs disclose and submit their expert reports to Defendant by August

 

'4 Td. at 681.

'S Buckhart, 602 A.2d at 59.

'6 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ
Prods., Inc., 2006 WL 1720073, at *1 (Del. Super. Apr. 26, 2006).

'7 Super. Ct. Civ. R. 26(b)(4)(A)(i).

18 Tq. (“[T]o state the substance of the facts and opinions to which the expert is
expected to testify ....”).
20, 2018, multiple stipulations by the parties moved the deadline to December 17,
2018.!° Plaintiffs failed to comply with the terms of the Trial Scheduling Order.
First, Plaintiffs identified their medical experts on December 18, 2018, one
day after the deadline”? Pursuant to Rule 16 of the Delaware Rules of Civil
Procedure, parties must adhere to the Trial Scheduling Order.”! Defendant, however,
has not raised Plaintiffs’ failure to meet the deadline in its Motion in Limine or its
Motion for Summary Judgment; thus, the Court considers this argument waived.”
Second, Plaintiffs did not provide Defendant with reports from these medical
experts by the deadline or anytime thereafter. Plaintiffs contend that they complied
with the requirements of the Trial Scheduling Order because they provided
Defendant with the medical records from these expert witnesses.”? Plaintiffs’ rely
on this Court’s decision in Diaz v. Malarkey, which found an “Office Note” written

by the plaintiff's medical expert was an expert report.”* This Court’s decision in

 

'9 Trial Scheduling Order, Mar. 12, 2018; Stipulation to Extend Expert Deadlines
Order, Aug. 29, 2018; Stipulation to Extend Expert Deadlines Order, Oct. 26,
2018.

20 Def.’s Mot. in Lim. to Exclude the Testimony of Dr. Nicole Gable, Dr. Steven
Grinder, Allegra Hamman and Jacqueline Blair Ex. A.

21 4bdallah v. Rago, 2016 WL 6246891, at *3 (Del. Super. Oct. 24, 2016).

22 Super. Ct. Civ. R. 16(b)(5)(iii).

23 Pls.’ Resp. to Def.’s Mot. for Summ. J. and Def.’s Mot. in Limine to Exclude the
Testimony of Dr. Nicole Gable, Dr. Steven Grinder, Allegra Hamman and
Jacqueline Blair Jj 5—10.

4 Id. 49 (citing Diaz v. Malarkey, 2015 WL 3508064, at *1 (Del. Super. June 3,
2015)).
Diaz is not controlling in the instant case. In Diaz, this Court found that the Office
Note contained the opinion of the plaintiffs medical expert.*> Contrary to Plaintiffs’
assertion,”° the medical records provided here do not contain the experts’ opinions
regarding the cause of Plaintiffs’ injuries.?” The disclosures in the instant case are
unlike the document disclosed in Diaz; therefore, this Court is not bound by its
holding in Diaz.

Further, medical records are not expert reports.”® Instead of providing expert
reports, Plaintiffs disclosed the medical records kept by each of their identified
medical experts and stated that each expert would testify consistent with that record.

The records which Plaintiffs disclosed are medical records, not expert reports.”?

 

5 Diaz, 2015 WL 3508064, at *1 (“Attached to Plaintiff Diaz’s opposition to
Defendant’s motion, is a document entitled ‘Office Note,’ wherein Dr. Sowa
opines on Plaintiff Diaz’s medical condition.” (emphasis added)).

26 Pls,’ Resp. to Def.’s Mot. for Summ. J. and Def.’s Mot. in Limine to Exclude the
Testimony of Dr. Nicole Gable, Dr. Steven Grinder, Allegra Hamman and
Jacqueline Blair { 8.

27 Id. Ex. C (medical record from Dr. Ginder), Ex. D (medical record from Allegra
Hamman), Ex. E (medical record from Dr. Gable), Ex. F (medical record from
Jacqueline Blair).

8 Hill v. DuShuttle, 58 A.3d 403, 406 (Del. 2013) (“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 produced.”); Drejka v. Hitchens Tire Service, 15
A.3d 1221, 1223 (Del. 2010) (finding that the trial court properly rejected the
argument that the production of medical records constituted compliance with the
Trial Scheduling Order).

29 See Hill, 58 A.3d at 406; Drejka, 15 A.3d at 1223.

7
Despite Plaintiffs’ failure to comply with the Trial Scheduling Order,
Defendant’s Motion in Limine is DENIED. Although a party’s failure to obey a
scheduling order permits the court to impose appropriate sanctions, the court “does
not have unfettered discretion to sanction a party by dismissing the case.”?? When
determining the appropriate sanction for a failure to comply with a Trial Scheduling
Order, the Court examines the Drejka factors: (1) 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.*!

Taking into account the Drejka factors, the Court finds that a monetary
sanction against Plaintiffs’ counsel would be a more effective remedy than dismissal
of Plaintiffs’ claim. Although Plaintiffs failed to comply with the Trial Scheduling
Order, Defendant also failed to move to compel submission of these expert reports.**

Neither party appears to have acted in bad faith, nor would Defendant be prejudiced

 

30 Abdallah v. Rago, 2016 WL 6246891, at *3 (Del. Super. Oct. 24, 2016) (citing
Drejka 15 A.3d at 1223).

31 Drejka, 15 A.3d at 1224.

32 Defendant’s failure to file a motion to compel submission of these medical
reports weakens its argument that Plaintiffs’ actions render “Defendant defenseless
against Plaintiffs claims.” Def.’s Mot. in Lim. to Exclude the Testimony of Dr.
Nicole Gable, Dr. Steven Grinder, Allegra Hamman and Jacqueline Blair § 25.

8
by permitting Plaintiffs to submit the reports of their medical experts at this time.
Therefore, dismissing Plaintiffs’ claims because of counsel’s failure to comply with
the Trial Scheduling Order is a broader remedy than is required.

As the Delaware Supreme Court has recognized, it is not uncommon for
litigants to disregard Scheduling Orders. “The Superior Court Rules recognize this
problem and provide what is likely to be the most effective sanction—monetary
penalties to be paid by the attorneys, not their clients.”*? Plaintiffs’ counsel’s failure
to comply with the requirements of the Trial Scheduling Order jeopardized
Plaintiffs’ case. Therefore, Plaintiffs’ counsel’s actions warrant imposing monetary
sanctions on Plaintiffs’ counsel in the amount of $900.00.

B. Defendant’s Motion for Summary Judgment

The outcome of Defendant’s Motion for Summary Judgment turns on this
Court’s decision on the Defendant’s Motion in Limine to Exclude Expert Testimony
of Dr. Nicole Gable, Dr. Steven Grinder, Allegra Hamman, and Jacqueline Blair.**
This Court has DENIED that Motion in Limine. Defendant has not presented any

other arguments in support of its Motion for Summary Judgment demonstrating any

 

33 Drejka, 15 A.3d at 1224.

34 Def.’s Big Oaks Trailer Park Inc.’s Mot. for Summ. J. {§ 7-13 (arguing that
Plaintiffs’ prima facie case requires testimony from medical experts to establish
causation).
additional basis for how else it is entitled to judgment as a matter of law.
Accordingly, Defendant’s Motion for Summary Judgment is DENIED.
Conclusion
For the forgoing reasons, Defendant’s Motion in Limine to Exclude Expert
Testimony of Dr. Nicole Gable, Dr. Steven Grinder, Allegra Hamman, and
Jacqueline Blair is DENIED, and Defendant’s Motion for Summary Judgment is
DENIED. It is also hereby ORDERED:
1. Plaintiffs must provide Defendant with the expert reports from their
medical experts by October 4, 2019.
2. Plaintiffs’ counsel shall pay a sanction to Defendant’s counsel in the
amount of $900.00 on or before October 4, 2019.
Judge Calvin T. Scott, Jr.

10
